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931 F.2d 55Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Readie Van SMITH, Defendant-Appellant.
No. 90-5199.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 11, 1991.Decided April 23, 1991.As Amended May 6, 1991.
1
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James H. Michael, Jr., District Judge. (CR-89-139)
2
Frederick T. Heblich, Jr., Parker, McElwain & Jacobs, P.C., Charlottesville, Va., for appellant.
3
Stephen Urban Baer, Assistant United States Attorney, Roanoke, Va., (Argued), for appellee. E. Montgomery Tucker, United States Attorney, Ray Burton Fitzgerald, Jr., Assistant United States Attorney, Roanoke, Va., on brief.
4
W.D.Va.
5
AFFIRMED.
6
Before WIDENER and CHAPMAN, Circuit Judges, and JOHN T. COPENHAVER, Jr., United States District Judge for the Southern District of West Virginia, sitting by designation.
JOHN T. COPENHAVER, Jr., District Judge:
7
Readie Van Smith appeals from the order of the district court denying his motion to suppress evidence obtained by police officers in a warrantless search of his residence. The district judge denied Smith's motion to suppress and found that the evidence retrieved was admissible at trial on the basis of the exigent circumstances exception to the rule against warrantless searches. We agree and affirm the decision of the district court.
I.
8
Appellant Readie Van Smith was indicted on October 19, 1989, by a grand jury in the United States District Court for the Western District of Virginia on charges of possession of cocaine with the intent to distribute, 21 U.S.C. Sec. 841(a), and use of a firearm in the commission of a drug offense, 18 U.S.C. Sec. 924(c). Prior to trial, the district judge denied Smith's motion to suppress evidence which had been obtained during a warrantless search of his residence at the time of arrest.1 After a trial to a jury on January 10, 1990, Smith was convicted on both counts of the indictment. The sole issue raised in this appeal is whether the district court erred in denying Smith's pretrial motion to suppress.
II.
9
At approximately 3:00 p.m. on September 30, 1989, the emergency operations center of the Charlottesville Police Department received a telephone report of "shots fired" in the vicinity of 2111 Michie Drive in the Hearthwood apartment complex. Three police officers were dispatched to the scene: Ronald E. Stayments, William Duncan and Karl Sprouse.
10
Officer Stayments was the first officer to arrive at the apartment complex. Because no specific location had been provided by the dispatch operator, Stayments circled the complex twice in his marked police vehicle before being flagged down by an unidentified woman who pointed to Apartment 73 and stated "that's where the shots were fired."
11
After parking his vehicle, Officer Stayments approached Apartment 73, finding that its door was standing approximately one-half open. Because he "had no idea what was going on," Stayments waited for a back-up officer to arrive before going into the apartment. Upon arrival of the back-up, Officer Duncan, Stayments stuck his head inside the door and called out, asking if anyone was home. After receiving no reply, Stayments proceeded into the apartment while Duncan kept watch on the outside.
12
Stayments conducted a cursory examination of the living area and was ascending the stairway to the second floor when he was informed by Officer Duncan that a black male, appellant Smith, was approaching the apartment. Upon Smith's entry, Stayments questioned him briefly as to who he was and what he was doing there and, after exiting the apartment for further discussion, was told by Smith that "guys" were shooting at him and trying to kill him and that he had shot back at them. Stayments also questioned Smith concerning the location of his gun but Smith either replied that he did not have it or did not know where it was.
13
During their discussion, Officer Stayments noted a large bulge in Smith's pocket and conducted a pat down in order to ascertain whether Smith was armed. Smith then willingly pulled out a bag of money from his trouser pocket which he claimed was from "Social Security." The bag of money retrieved from Smith was sorted out in $100 increments and was ultimately determined to contain $3,846. While in the process of retrieving additional money from his front pocket, Smith dropped a plastic bag from his pocket containing "two little white chunks of what appeared to be crack." Smith denied that the plastic bag was his and claimed that he did not know what it was or where it had come from. The plastic bag which fell from Smith's pocket proved to contain approximately eight grams of "crack" cocaine.
14
Smith was then read his rights and placed under arrest. While Officer Stayments was walking Smith to the police van and prior to their departure from the complex, Officer Sprouse asked whether he should "secure the apartment and shut the door." Stayments replied that the upstairs had not yet been checked and that they had "better check it." Officer Sprouse testified at the suppression hearing that this meant that he was "to make sure there wasn't a body up there and the gun," given that the whereabouts of Smith's weapon had not yet been determined and given that the officers were not yet "quite sure what the whole deal surrounding the shooting was." Sprouse also testified that he was specifically concerned, among other things, with the possibility of another gunman being upstairs in the apartment.
15
Sprouse entered the apartment, with his service revolver drawn, and proceeded upstairs. As he topped the stairs, Sprouse testified that he could see two bedrooms and a folding-type attic door. Sprouse noted that the attic door was standing open approximately 6-8 inches and that pink insulation was lying on the carpet underneath the opening. Thinking that "possibly someone was up there," Sprouse jerked the door open, following which a gun and a black plastic case fell out onto the carpet.2 After checking the attic, Sprouse completed a cursory search of the upstairs by glancing quickly into each of the upstairs bedrooms. He then returned to the police station with the gun and case.3
16
Based upon the information received, the officers then secured a search warrant for Smith's apartment. When the warrant was served and the apartment searched, additional ammunition was found along with several test tubes containing cocaine residue.
17
Smith contends that the initial warrantless search of his apartment was per se improper and that it was not justified under exigency exceptions to the presumptive invalidity of such searches. He argues, therefore, that the district court erred in denying his motion to suppress the items retrieved from the attic during Officer Sprouse's warrantless search.
III.
18
It is a basic tenant of the search and seizure doctrine that searches undertaken without a warrant issued upon probable cause are "per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). One such exception is that of exigent circumstances. United States v. Turner, 650 F.2d 526, 528 (4th Cir.1981).
19
In determining the existence of exigent circumstances, courts have held that warrantless intrusions may be justified by hot pursuit of a fleeing felon, Welsh v. Wisconsin, 466 U.S. 740 (1984), imminent destruction of evidence, United States v. Turner, 650 F.2d 526, 528 (4th Cir.1981), the need to prevent a suspect's escape, Minnesota v. Olson, --- U.S. ----, 110 S.Ct. 1684, 1690 (1990), or the risk of danger to the police or to other persons inside or outside a dwelling. Id. at 1690. See also United States v. Clement, 854 F.2d 1116 (8th Cir.1988) ("It is not necessary to obtain a warrant if lives are threatened, a suspect's escape is imminent, or evidence is about to be destroyed"), citing Michigan v. Tyler, 436 U.S. 499, 509 (1978); Warden v. Hayden, 387 U.S. 294, 298-99 (1967); Ker v. California, 374 U.S. 23, 42 (1963).
20
In Maryland v. Buie, the Supreme Court recently considered the extent to which, under the exigency exception to the rule against warrantless searches, police officers may conduct a "protective sweep" of an arrestee's residence at the time of arrest. 110 S.Ct. 1093 (1990). In Buie, the Court held that, as an incident to an in-home arrest, officers could, "as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Id. at 1098. Beyond that, the Court concluded the Fourth Amendment would permit a further protective sweep only "if the searching officer 'possesse[d] a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[ed]' the officer in believing ... that the area swept harbored an individual posing a danger to the officer or others." Id. at 1095 (citations omitted).4
21
Noting that a protective sweep is a "quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others," the Buie Court held that the search must be narrowly confined to a cursory visual inspection of those places in which a person might be hiding. Id. at 1094. Furthermore, the sweep must last "no longer than necessary to dispel the reasonable suspicion of danger" and must not, in any event, last "longer than it takes to complete the arrest and depart the premises." Id. at 1099.
22
Consistent with the scope of and limitations placed upon protective sweep searches set forth in Buie and Olson, this circuit has upheld such searches where necessary to protect the safety of the arresting officers or to prevent the destruction of evidence. See, e.g., Giancola v. State of West Virginia Dep't of Pub. Safety, 830 F.2d 547 (4th Cir.1987); United States v. Bernard, 757 F.2d 1439 (4th Cir.1985); United States v. Turner, 650 F.2d 526 (4th Cir.1981); United States v. Baker, 577 F.2d 1147 (4th Cir.1978).
23
The factual circumstances leading to the arrest of Smith and the protective sweep of the apartment in this case are essentially undisputed. Reviewing these facts in the sequence in which they became known to the officers, we find that the protective sweep of the apartment was justified by a reasonable belief that the apartment may have harbored individuals who could pose a threat to the safety of the officers or others. Specifically, the officers were dispatched to the Hearthwood apartment complex because of a report of "shots fired." Upon arrival, Officer Stayments was specifically directed to Apartment 73 by a female bystander who informed him "that's where the shots were fired." Following a cursory visual inspection of the living area of the apartment, but prior to his being able to check the upstairs for the person or persons who might have originated the gunfire, Stayments was advised that appellant Smith was approaching the apartment from the outside.
24
After being instructed to step outside the apartment, Smith informed Stayments that "guys" had been shooting at him, were "trying to kill him," and that he had shot back at them. Despite questioning by Stayments, Smith did not inform the officer of the whereabouts of his weapon.
25
Based upon the "shots fired" call, the female bystander's specific reference to Apartment 73 as the location at which the shots were fired, and the defendant's own report of exchanging gunfire with "guys" who were trying to kill him, coupled with the seizure of crack cocaine and a large amount of cash from Smith, the officers had a rational basis upon which to believe that one or more individuals bearing dangerous weapons and posing a risk to the officers could be in the immediate vicinity of the arrest. Indeed, inasmuch as the door to the apartment was standing open at the time of the officers' arrival, and inasmuch as Smith approached the apartment from the outside, the officers could have rationally inferred that the other gunmen with whom Smith claimed to have exchanged gunfire could have entered the apartment while he was on the outside and were waiting to fire on him or the officers as they departed the scene. See United States v. Rosado, 866 F.2d 967, 970 (7th Cir.1989). A cursory visual examination of the second level of the apartment overlooking the parking area was, therefore, justified in order to dispel the possibility of such an attack upon Smith and the officers as they undertook to depart from the scene.
26
Moreover, inasmuch as Stayments had been advised by the defendant that Apartment 73 belonged to his aunt with whom he had been living, and inasmuch as the aunt's whereabouts had not been ascertained at the time of the defendant's arrest, the officers could reasonably have been concerned not only for their own safety but for the safety of third parties who might have been present inside the apartment at the time of the arrest. See Minnesota v. Olson, 110 S.Ct. at 1690 (warrantless intrusion may be justified by the need to prevent risk of danger to the police or "to persons inside or outside the dwelling").
27
In view of the facts which were known to the officers at the time of Smith's arrest, the protective sweep of the apartment was not inconsistent with the principles articulated in Buie nor in any of our prior decisions concerning the propriety and permissible scope of such searches. As required by Buie, a review of "specific and articulable" facts known to the officers at the time of the arrest, in conjunction with rational inferences drawn from those facts, reasonably warranted the arresting officers' belief that a protective sweep of the apartment was necessary in order to rule out the possibility of danger to themselves or to others. 110 S.Ct. at 1095.
28
We likewise conclude that the scope of the officer's protective sweep of the apartment did not go beyond that permitted by Buie.5 The protective sweep was confined to areas in which a gunman or victim could be harbored, and lasted no longer than was necessary in order to dispel the officers' reasonable suspicion of danger.6
29
Inasmuch as the protective sweep was undertaken on the basis of the officers' reasonable belief that the area swept potentially harbored a gunman or gunmen who could threaten their safety or the safety of others at the scene, and inasmuch as the sweep did not exceed the permissible bounds of such searches as defined by Buie, the warrantless search of Smith's residence was justifiable as a matter of law under the exigency exception to the general rule against warrantless searches. Buie, 110 S.Ct. 1093; see also United States v. Delgado, 903 F.2d 1495 (11th Cir.1990). In the course of that protective sweep, the officers had the right to seize any evidence of crime in plain view. See United States v. Bernard, 757 F.2d 1439 (1985); United States v. Baker, 577 F.2d 1147, 1152 (4th Cir.1978). Accordingly, the district court did not err when it denied Smith's motion to suppress and its order is
30
AFFIRMED.
31
WIDENER and CHAPMAN, Circuit Judges, joined.
1
Smith was initially arrested on September 30, 1989, by Charlottesville, Virginia, police officers on charges of possession of cocaine with intent to distribute under Virginia Code Sec. 18.2-248, and unlawful discharge of a firearm within city limits, Virginia Code Section 18.2-280. The state drug charge was dismissed following Smith's indictment on federal charges. A thirty-day jail sentence on the state firearm charge was suspended
2
The weapon was a Beretta 92F semiautomatic. There was a live round in the chamber and twelve others in the magazine. An additional magazine in the case contained fifteen more rounds. The gun smelled as though it had recently been fired
3
When the defendant saw the 9mm Beretta upon Sprouse's return to the station, he identified the gun as his and stated that he wanted it back
4
Although Buie concerned a protective sweep incident to an inhome arrest, a protective sweep of an arrestee's residence may also be justified by exigent circumstances in cases such as this where the arrest itself occurred outside the premises. See United States v. Hoyos, 892 F.2d 1387 (9th Cir.1989), in which the Ninth Circuit noted:
Hoyos' contention that the protective sweep exception to the requirement of a search warrant to enter a residence does not apply if the arrest occurs outside is not supported by any authority. This is not surprising because the distinction is logically unsound. If the exigencies to support a protective sweep exist, whether the arrest occurred inside or outside the residence does not affect the reasonableness of the officer's conduct. A bullet fired at an arresting officer standing outside a window is as deadly as one that is projected from one room to another....
Id. at 1397 (emphasis in original).
5
The district judge noted the following factual recount of the limited intrusiveness of the search:
Both officers remained in the apartment for only a short period of time. Neither officer rummaged around the apartment in an effort to turn up additional evidence. Officer Sprouse, upon seeing the partially open attic door, which could have indicated that someone, including a potential gunman, was hiding there, or as it turned out, that a dangerous instrumentality had been concealed there, did no more than retrieve the weapon which fell out. After assuring themselves that no victims of a shooting were located in the apartment and that nothing in the unit posed further danger to the public, the officers secured the unit and proceeded to obtain a search warrant.
We conclude that these factual findings concerning the propriety and scope of the search were not clearly erroneous. United States v. Bernard, 757 F.2d 1439 (4th Cir.1985); United States v. Turner, 650 F.2d 526 (4th Cir.1981).
6
Although Smith argues that the arrest had been completed and he had been taken from the scene prior to the protective sweep, the record of the suppression hearing does not support this conclusion. Officer Stayments' testimony merely reflects that he did not go back into the apartment after arresting Smith but that he "read him his rights, placed him under arrest ... put him in the van and ... went to Base." Stayments was not specifically asked where he and the defendant were located at the time he directed Officer Sprouse to conduct the protective sweep
Officer Sprouse testified that he was told to conduct the protective sweep when Officer Stayments was "getting ready to leave the scene." Officer Stayments' concern for the officers' safety and the safety of third parties possibly being held inside the apartment would have been no loss merely because he was preparing to leave the scene with the defendant. See United States v. Baker, wherein this court upheld a protective sweep given the possibility that "there might be an armed accomplice in the house who observing the arrest ... would fire on them." 577 F.2d 1147, 1152.
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644 F.2d 877
Cornishv.State of Maryland
80-1761
UNITED STATES COURT OF APPEALS Fourth Circuit
2/26/81
1
D.Md.
AFFIRMED
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CRAIG CALHOUN, )
)
Appellant, )
)
v. ) Case No. 2D18-363
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed February 27, 2019.
Appeal from the Circuit Court for
Hillsborough County; Michelle Sisco,
Judge.
Craig Calhoun, pro se.
Ashley Moody, Attorney General,
Tallahassee, and Magaly Rodriguez,
Assistant Attorney General, Miami, for
Appellee.
PER CURIAM.
Affirmed.
KELLY, KHOUZAM, and SLEET, JJ., Concur.
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971 F.2d 723
Patricia Ann CLARK, Johnnie Mae Reddish, on behalf ofthemselves and all other persons similarlysituated, Plaintiffs-Appellants,v.The HOUSING AUTHORITY OF the CITY OF ALMA, et al.,Defendants-Appellees.
No. 91-8919.
United States Court of Appeals,Eleventh Circuit.
Sept. 10, 1992.
Douglas W. Alexander, P.C., Brunswick, Ga., Lisa J. Krisher, Kay Y. Young, Atlanta, Ga., for plaintiffs-appellants.
William J. Edgar, Solomon & Edgar, P.C., Alma, Ga., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Georgia.
Before DUBINA, Circuit Judge, HILL, and CLARK*, Senior Circuit Judges.
DUBINA, Circuit Judge:
1
The appellants, Patricia Ann Clark and Johnnie Mae Reddish represent a class of low-income tenants ("the tenants"), living in a federally assisted housing project. The tenants appeal the district court's order denying their motion for attorney's fees.I. STATEMENT OF THE CASE
A. Background Facts
2
This case began in the 1970's when tenants of the Alma Housing Authority ("the Housing Authority") filed suit in federal court against the executive directors of the Housing Authority and its board members for allegedly illegal management policies, including arbitrary lease terminations and inadequate repairs and maintenance of apartments in the project. That litigation resulted in a consent decree wherein the Housing Authority agreed, among other things, to follow specific procedures for evictions, setting rents, and maintaining and repairing the apartment units.
3
The present litigation began when the Housing Authority refused to accede to certain requests made by Georgia Legal Services lawyers representing various tenants. Following discovery and negotiations, the parties reached an agreement as to the primary issues involved in the litigation. The parties then requested that the district court "arbitrate" the remaining issues, which the district court agreed to do. Following a hearing before the district court, the parties entered into a Final Consent Order and Judgment ("the Consent Decree") dated December 6, 1990, and filed the Consent Decree that same day in the clerk's office. The substance of the Consent Decree provides for a method by which tenants could challenge any charges for rent or repairs which the tenants felt to be improper. The remainder of the Consent Decree deals with ancillary issues raised by the tenants. The district court ruled in favor of the tenants on some of those issues and in favor of the Housing Authority on the remaining issues.
B. Procedural History
4
Twenty-nine days after the entry of judgment of the Consent Decree, the tenants filed a motion for attorney's fees pursuant to 42 U.S.C. § 1988. The Housing Authority filed a brief in opposition to the tenants' motion and contended, among other things, that the tenants' request was untimely. The district court held a hearing, after which it denied the motion for attorney's fees based upon its finding that the motion was untimely under Local Rule 11.2(b) of the United States District Court for the Southern District of Georgia.1 The tenants then perfected this appeal.
II. ANALYSIS
5
The issue presented in this appeal is whether the district court abused its discretion when it found that the request for attorney's fees was untimely.
6
Title 42 U.S.C. § 1988 provides in pertinent part:
7
In any action or proceeding to enforce a provision of §§ 1981, 1982, 1983, 1985, and 1986 of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.2
8
The statute itself prescribes no time frame for filing the request for attorney's fees. As a general rule, however, attorney's fee requests must be made within a reasonable period of time after the entry of final judgment. Loman Dev. Co. v. Daytona Hotel & Motel Suppliers, 817 F.2d 1533, 1536 (11th Cir.1987); Gordon v. Heimann, 715 F.2d 531, 539 (11th Cir.1983). "The Supreme Court and this circuit have both intimated that the establishment of timeliness standards is best left to the district courts through the adoption of local rules." Loman, 817 F.2d at 1536; see also White v. New Hampshire Dept. of Employment Sec., 455 U.S. 445, 454 nn. 16 and 17, 102 S.Ct. 1162, 1168 nn. 16 and 17, 71 L.Ed.2d 325 (1982) (district court is authorized to adopt rules establishing timeliness standards for the filing of claims for attorney's fees); Gordon, 715 F.2d at 539 n. 8. The United States District Court for the Southern District of Georgia has adopted such a rule. See Local Rule 11.2(b).
9
Local Rule 11.2 sets forth several procedural requirements for filing a motion for attorney's fees after the entry of a final judgment. At issue here are the time limitations imposed by Local Rule 11.2(b), which require the motion to be filed and served at least ten (10) days prior to expiration of the time within which such opposing parties can file a timely notice of appeal from the judgment under F.R.A.P. 4(a)(1, 3-6). Under F.R.A.P. 4(a), notice of appeal must be filed within thirty days after the date of entry of the judgment or the date of the order.
10
In the present case, January 5, 1991, is the date falling thirty days from the date the consent decree was entered. See F.R.A.P. 26(a). Since January 5, 1991, was a Saturday, timely notice of appeal could have been filed on January 7, 1991. Id. Ten days prior to expiration of the time to file an appeal, therefore, was December 28, 1991. Thus, the tenants' request for attorney's fees was seven days late. The tenants seek to avoid the time limitations imposed by Local Rule 11.2(b) by arguing that the Rule applies to appealable orders only, and that a consent decree is not an appealable order.
11
The starting point in statutory interpretation is "the language [of the statute] itself." United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120, 92 L.Ed.2d 483 (1986). Rule 11.2 states specifically that it applies to attorney's fees3 and that it applies to final judgments, including judgments made final under Fed.R.Civ.P. 54(b). A consent decree is a final judgment that may be reopened only to the extent that equity requires. Rufo v. Inmates of Suffolk County Jail, --- U.S. ----, 112 S.Ct. 748, 753, 116 L.Ed.2d 867 (1992); Sanders v. Monsanto Co., 574 F.2d 198 (5th Cir.1978) (when accepted by the court, a consent decree operates as a final judgment). Thus, by its own language, Rule 11.2 is applicable to consent decrees.
12
The tenants in this case focus on the "appealability" language of Local Rule 11.2(b) in an attempt to narrow application of the rule. We agree, however, with the district court that a consent decree fits within the parameters of Local Rule 11.2.
13
In Loman, we held that Local Rule 11.2 applied to any appealable order. In that case the plaintiff obtained a default judgment and the defendant filed a motion for relief from judgment under Fed.R.Civ.P. 60(b). Eight months after the motion was decided in the plaintiff's favor, the plaintiff filed a motion for additional attorney's fees incurred to defend against the Rule 60(b) motion. The district court applied Local Rule 11.2(b) to deny attorney's fees. We held that a fair reading of the Local Rule suggests that the timeliness requirements apply following an order denying a Rule 60(b) motion since it is an appealable final order. Loman, 817 F.2d at 1537. Loman applied Local Rule 11.2(b) broadly to include any appealable final order.
14
Although typically affirmed on appeal, a consent decree may be appealed. The Supreme Court stated the principle many years ago as follows:
15
If, when the case gets here, it appears that the decree appealed from was assented to by the appellant, we cannot consider any errors that may be assigned which were in law waived by the consent, but we must still receive and decide the case. If all the errors complained of come within the waiver, the decree below will be affirmed, but only after hearing.
16
Pacific R.R. v. Ketchum, 101 U.S. 289, 295, 25 L.Ed. 932 (1879). Moreover, in Swift & Co. v. United States, 276 U.S. 311, 48 S.Ct. 311, 72 L.Ed. 587 (1928) the Supreme Court held:
17
Decrees entered by consent have been reviewed upon appeal ... where there was a claim of lack of actual consent to the decree as entered; or fraud in its procurement; or that there was lack of federal jurisdiction because of the citizenship of the parties. But "a decree, which appears by the record to have been rendered by consent is always affirmed, without considering the merits of the cause."
18
Id. at 324, 48 S.Ct. at 314 (citations omitted).
19
In Dorse v. Armstrong World Industries, Inc., 798 F.2d 1372 (11th Cir.1986), we held that appellate review of a consent judgment is appropriate where the stipulation of judgment expressly recognized the defendant's intent to appeal. Id. at 1376-77.4 See also Shores v. Sklar, 885 F.2d 760 (11th Cir.1989) (en banc), cert. denied, 493 U.S. 1045, 110 S.Ct. 843, 107 L.Ed.2d 838 (1990) (appellant's consent to an entry of judgment, without reservation of a right to appeal, bars a subsequent appeal of the order denying class certification). In Dorse, we further held that appellate review is proper where lack of actual consent or failure of subject matter jurisdiction is alleged. Id. at 1375.5 See also White v. C.I.R., 776 F.2d 976 (11th Cir.1985) (generally, a party who consents to the entry of judgment waives his right to appeal with two exceptions: (1) where the party did not actually consent or (2) where the court lacked subject matter jurisdiction to enter the judgment).
20
This circuit has allowed an appeal from a consent decree where the subject of appeal was outside the four corners of the consent decree itself. In Stallworth v. Shuler, 758 F.2d 1409 (11th Cir.1985), we denied the plaintiff's motion to dismiss holding that an appeal could lie from a consent decree for attorney's fees entered by the district court because the record showed that only the amount and not the entitlement of fees was covered by the consent decree. The consent decree did not preclude appeal. Id. at 1410.
21
We recognize that appellate review of a consent decree can be had only under limited circumstances. Nevertheless, we read Pacific Ketchum as holding that the procedural act of actually filing an appeal from a consent decree may be accomplished whether we consider the assignment of errors in the appeal or not. In the present case, an appeal was not filed; the district court merely used the time limitations for filing an appeal as the date upon which to calculate the time within which a motion for attorney's fees could be filed.6
22
In Watkins v. McMillan, 779 F.2d 1465 (11th Cir.1985), we affirmed the district court's denial of a motion for attorney's fees on the ground that the motion was untimely. There, the local rule provided in pertinent part:
23
In any case in which an attorney is entitled ... to attorney fees ... [the] petition [for the fees] shall be filed or mailed by certified or registered mail within 30 days from the date of judgment, or such claim shall be deemed waived.7
24
The plaintiff in Watkins failed to file his motion for attorney's fees within the thirty day time limit prescribed by the rule. He contended that his filing was timely because the final judgment which triggered the rule was not final until affirmed on appeal, and not merely a final judgment entered by the district court. In affirming the district court's denial of the motion for attorney's fees, we held that for purposes of the local rule, post-judgment motions or a subsequent appeal do not affect in any manner the time limits contained in the local rule.
25
In Pitts v. Freeman, 755 F.2d 897 (11th Cir.1985), we again affirmed the denial of attorney's fees based on the ground that the motion was untimely. There, the local rule8 stated "[a]ny party seeking an award of attorney's fees pursuant to ... 42 U.S.C. § 1988 must file a motion ... within fifteen (15) days of the entry of the final judgment as to the party seeking the award." In rejecting appellant's argument that the district court's order was not a "final judgment" within the meaning of the local rule because the judgment was being appealed, we held that the "district court's interpretation is not only acceptable, but appears to be the only acceptable interpretation" of the local rule. Id. at 898.
26
As these cases demonstrate, this circuit gives great deference to a district court's interpretation of its local rules. This is consistent with other circuits. In Jackson v. Beard, 828 F.2d 1077 (4th Cir.1987), the Fourth Circuit affirmed the denial of petitioner's attorney's fees motion on the ground that the filing of post-judgment motions did not delay the start of the running of the twenty day period prescribed by the local rule for such motions. The petitioners argued that the timing of the motion should be interpreted as beginning with the disposition of all post-judgment motions, not with the entry of the district court's judgment. Id. at 1079. The Fourth Circuit found that argument unpersuasive, and gave deference to the United States Magistrate's interpretation of the district court's local rule. The Fourth Circuit held that a magistrate's singular interpretation is entitled to some measure of deference, particularly in view of the fact that his position was not at odds with that of any judge in the district. Id.
27
In the present case, Rule 11.2 is tied to the time when an appeal can be filed. The Rule makes no exceptions for cases in which an appeal will not lie, cannot lie, or should not lie. Since a consent decree is an appealable order in some circumstances, we see no rational basis for it to be excluded from the coverage of Local Rule 11.2(b). Indeed, the district court interpreted Rule 11.2 as applying to consent decrees without exception. A district court is the "best judge of its own rules." United States Fidelity and Guaranty Co. v. Lawrenson, 334 F.2d 464, 467 (4th Cir.), cert. denied, 379 U.S. 869, 85 S.Ct. 141, 13 L.Ed.2d 71 (1964). To hold otherwise would create confusion and delay by requiring a district court to make a threshold determination whether a consent decree is appealable or not. This would undermine the goal of timeliness standards that local rules seek to establish. See White v. New Hampshire Department of Employment Security, 455 U.S. at 454 nn. 16, 17, 102 S.Ct. at 1168 nn. 16, 17. Moreover, the tenants in this case offer no persuasive reason for applying a more flexible time limit to a motion for attorney's fees that follows a consent decree.
28
This court reviews an award of attorney's fees for abuse of discretion; nevertheless, that standard of review still allows us to closely scrutinize questions of law decided by the district court in reaching a fee award. See Camden I Condominium Ass'n, Inc. v. Dunkle, 946 F.2d 768, 770 (11th Cir.1991); Haitian Refugee Ctr. v. Meese, 791 F.2d 1489, 1496, vacated in part on other grounds, 804 F.2d 1573 (11th Cir.1986).
29
After a thorough review of the record, we are persuaded that the district court's rationale for denying the motion for attorney's fees was reasonable. Because a district court's interpretation of its own rules should be granted deference, we decline, in the present case, to second-guess the district court's interpretation of its own Rule. The district court's order denying the tenants' motion for attorney's fees is affirmed.
30
AFFIRMED.
*
See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit
1
11.2 Attorney's Fees: If a final judgment, including a judgment made final under Fed.R.Civ.P. 54(b), does not determine (or establish other procedures for determining) the amount of attorney's fees which are authorized by statute to be awarded by the Court to or on behalf of a prevailing party or which may be sought under the equitable or inherent powers of the Court, the following procedures shall apply:
(b) The motion [for attorney's fees] shall be filed with the Clerk of the Court and served under Fed.R.Civ.P. 5 upon the parties against whom the award is sought at least ten (10) days prior to the expiration of the time within which such opposing parties can file a timely notice of appeal from the judgment under F.R.A.P. 4(a)(1, 3-6).
2
The statute also permits attorney's fees for monitoring consent orders. Turner v. Orr, 785 F.2d 1498, 1503-04 (11th Cir.1986)
3
In order for local rules to establish time limitations for motions for attorney's fees, the local rule must state explicitly that it is applicable to claims for attorney's fees. Zaklama, M.D. v. Mount Sinai Medical Center, 906 F.2d 645, 647 (11th Cir.1990)
4
We recognize decisions to the contrary in other circuits as well as in this circuit. Specifically, Amstar Corp. v. Southern Pac. Transport Co. of Texas and Louisiana, 607 F.2d 1100 (5th Cir.1979), cert. denied, 449 U.S. 924, 101 S.Ct. 327, 66 L.Ed.2d 153 (1980), which held that an appeal cannot lie from a consent judgment notwithstanding the fact that the judgment contained a recognition that a party wished to appeal. Id. at 1100. However, Justice Blackmun's dissent from the denial of certiorari in that case suggests that the case was wrongly decided because it ignores the parties' intent. Amstar, 449 U.S. at 924, 101 S.Ct. at 327
As noted in Dorse, Amstar is also in conflict with Greenhouse v. Greco, 544 F.2d 1302 (5th Cir.1977), a case decided prior to Amstar, but not cited therein. Dorse, 798 F.2d at 1376. In Greenhouse, the court denied a motion to dismiss the appeal holding that the doctrine that one may not appeal from a consent judgment did not apply because the parties did not consent to a judgment that would preclude review. Greenhouse, 544 F.2d at 1305. Research reveals no definitive answer to the question regarding whether an appeal can technically be filed irrespective of the merits of such an appeal. Where circuit authority is in conflict, the earliest panel opinion resolving the issue in question binds this circuit until the court resolves the issue en banc. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981).
5
In Dorse, we left open the question of whether a consent decree not falling into one of the above-categories should be dismissed for lack of standing or affirmed under a waiver-of-error principle. Id. at 1374, n. 3. Following Pacific Railroad it appears that the proper view is that a consent decree may be affirmed based on a waiver-of-error principle. 15A Charles A. Wright, et al., Federal Practice and Procedure, § 3902, at 92-93 (1992)
6
At oral argument, counsel for the tenants conceded that an appeal from the consent decree could have been filed
Judge Hill: Could the tenants have appealed timely?
Counsel: The tenants could have appealed just as anyone can file a notice of appeal.
Judge Hill: It might not be a successful one.
Counsel: Yes, your honor.
7
Rule 5, Local Rules of the United States District Court for the Middle District of Alabama
8
Rule 421.1, Local Rules of the United States District Court for the Northern District of Georgia
| {
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COURT OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT
WORTH
NO.
2-08-417-CV
TEXAS
BACK INSTITUTE, P.A. APPELLANTS
D/B/A TEXAS BACK
INSTITUTE
AND WILLIAM D. BRADLEY,
M.D.
V.
BRENDA
PETERS APPELLEE
------------
FROM THE 158TH
DISTRICT COURT OF DENTON COUNTY
------------
MEMORANDUM OPINION[1]
------------
I. Introduction
Appellants Texas Back Institute, P.A. d/b/a Texas
Back Institute and William D. Bradley, M.D. appeal the trial court=s orders
denying their objections to Appellee Brenda Peters=s tendered
expert report and denying their motion to dismiss Peters=s health
care liability claims. See Tex.
Civ. Prac. & Rem. Code Ann. ' 51.014(a)(9)
(Vernon 2008), ' 74.351(a), (b) (Vernon
Supp. 2009). In a single issue, divided
into two subissues, Appellants argue that Carl M. Berkowitz, M.D., the
physician who authored Peters=s expert
report, is not qualified to render an expert opinion regarding the accepted
standards of care applicable to this case and that the common law doctrine of
res ipsa loquitur does not provide an exception to the requirement that Peters
serve a section 74.351(a) expert report.
We will affirm.
II. Factual and Procedural Background
According to Peters=s
original petition, on July 30, 2007, Dr. Bradley performed a Amicrodiske[c]tomy
at L5-S1 level with a hemilaminectomy.@ At the conclusion of the procedure, Dr.
Bradley confirmed that all sponge, needle, and instrument counts were
correct. Peters thereafter developed Asevere complications@ at the
surgical site, including swelling, redness, purulent pus, high fever, and aches
and pains. On or about August 27, 2007,
Peters underwent an incision and drainage procedure at the surgical site during
which a medical sponge left from the microdiskectomy was discovered. Peters consequently underwent additional
medical procedures, rehabilitation, and physical therapy.
Peters filed her original petition on May 23,
2008, alleging that she had suffered injuries and damages proximately caused by
Appellants= negligence in failing to
properly perform the appropriate and correct examinations, treatment, and
procedures associated with the microdiskectomy; that Appellants committed gross
negligence; and that res ipsa loquitur applies to her cause of action. Peters also alleged that Texas Back Institute
is vicariously liable for Dr. Bradley=s
actions under the doctrine of respondeat superior. Pursuant to civil practice and remedies code
section 74.351(a), Peters timely served Appellants with Dr. Berkowitz=s expert
report and curriculum vitae. Id. ' 74.351(a).
Appellants filed objections to Dr. Berkowitz=s report
challenging (1) his qualifications to opine on the standards of care
applicable to this case and (2) any contention by Peters that no expert
report is required to be served because the doctrine of res ipsa loquitur
applies to the case. Before the
expiration of 120 days from the date Peters filed her original petition, she
served Appellants with an addendum to Dr. Berkowitz=s
report. Appellants thereafter filed
their first supplemental objections to Dr. Berkowitz=s report
and addendum and their motion to dismiss Peters=s claims,
again challenging Dr. Berkowitz=s
qualifications and arguing that res ipsa loquitur is not an exception to
section 74.351(a)=s service requirement. The trial court overruled Appellants=
objections to Dr. Berkowitz=s report
and denied their motion to dismiss. This
interlocutory appeal followed.
III. Dr. Berkowitz=s
Qualifications
In the first part of their only issue, Appellants
argue that the trial court abused its discretion by denying their motion to
dismiss because Dr. Berkowitz=s report
Adoes not
demonstrate, or even claim, that he is qualified to opine as to the standard of
care applicable to an orthopedic surgeon in the performance of postoperative
procedures to prevent the retention of a sponge following spinal surgery.@
A. Standard of Review
We review a trial court=s order
on a motion to dismiss a health care liability claim for an abuse of
discretion. Jernigan v.
Langley, 195 S.W.3d 91, 93 (Tex. 2006).
A trial court abuses its discretion if it acts in an arbitrary or
unreasonable manner or if it acts without reference to any guiding rules or
principles. Bowie Mem'l Hosp.
v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241B42 (Tex.
1985), cert. denied, 476 U.S. 1159 (1986)). We may not substitute our judgment for the
trial court=s judgment. Id.
Nor can we determine that the trial court abused its discretion merely
because we would have decided the matter differently. Downer, 701 S.W.2d at 242.
B. Expert Report Requirements
Civil practice and remedies code section 74.351
provides that, within 120 days of filing suit, a plaintiff must serve expert
reports for each physician or health care provider against whom a liability
claim is asserted. Tex. Civ. Prac. & Rem. Code
Ann. ' 74.351(a). An expert report is a written report by an
expert that provides a fair summary of the expert=s
opinions regarding the applicable standard of care, the manner in which the
care rendered by the physician or health care provider failed to meet the
standard, and the causal relationship between that failure and the injury,
harm, or damages claimed. Id. ' 74.351(r)(6). If a claimant timely furnishes an expert
report, a defendant may file a motion challenging the report=s
adequacy. See id. ' 74.351(a),
(c), (l). A trial court must
grant a motion to dismiss based on the alleged inadequacy of an expert report
only if it finds, after a hearing, Athat the
report does not represent an objective good faith effort to comply with the
definition of an expert report@ in the
statute. Id. ' 74.351(l).
The information in the report does not have to
meet the same requirements as evidence offered in a summary judgment proceeding
or at trial, and the report need not marshal all the plaintiff=s proof,
but it must include the expert=s
opinions on each of the elements identified in the statuteCstandard
of care, breach, and causation. Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878B79 (Tex.
2001); Thomas v. Alford, 230 S.W.3d 853, 856 (Tex. App.CHouston
[14th Dist.] 2007, no pet.). To qualify
as a good faith effort, an expert report must (1) inform the defendant of
the specific conduct the plaintiff has called into question and
(2) provide a basis for the trial court to conclude that the plaintiff=s claims
have merit. Palacios, 46 S.W.3d
at 879; Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.CHouston
[1st Dist.] 2006, no pet.). A report
does not fulfill these two purposes if it merely states the expert=s
conclusions or if it omits any of the statutory requirements. Palacios, 46 S.W.3d at 879. In assessing the report=s
sufficiency, the trial court may not draw any inferences; it must rely
exclusively on the information contained within the report=s four
corners. Bowie Mem=l Hosp., 79
S.W.3d at 52; Palacios, 46 S.W.3d at 878.
Under section 74.401, a person may qualify as an
expert witness on the issue of whether a physician departed from accepted
standards of medical care only if the person is a physician who
(1) is practicing
medicine at the time such testimony is given or was practicing medicine at the
time the claim arose;
(2) has knowledge of
accepted standards of medical care for the diagnosis, care, or treatment of the
illness, injury, or condition involved in the claim; and
(3) is qualified on
the basis of training or experience to offer an expert opinion regarding those
accepted standards of medical care.
Tex. Civ. Prac. & Rem. Code Ann. ' 74.401(a)
(Vernon 2005). In determining whether a
witness is qualified on the basis of training or experience under section
74.401(a)(3), the court shall consider whether, at the time the claim arose or
at the time the testimony is given, the witness (1) is board certified or
has other substantial training or experience in an area of medical practice
relevant to the claim and (2) is actively practicing medicine in rendering
medical care services relevant to the claim.
Id. ' 74.401(c).
In delineating the statutory qualifications for a
chapter 74 expert, the relevant provisions focus on the defendant physician=s area
of expertise and on the condition involved in the claim. See id. ' 74.401(a)(2)
(requiring expert to have Aknowledge
of accepted standards of medical care for the diagnosis, care, or treatment of
the illness, injury, or condition involved in the claim@
(emphasis added)), ' 74.401(c)(1), (2)
(recognizing an expert may be qualified on the basis of training or experience
if he or she is board certified or is practicing Ain an
area of medical practice relevant to the claim@
(emphasis added)). The applicable
standard of care and an expert=s
ability to opine on it are thus dictated by the medical condition involved in
the claim and by the expert=s
familiarity and experience with that condition.
See Granbury Minor Emergency Clinic v. Thiel, 296 S.W.3d
261, 267 (Tex. App.CFort Worth 2009, no pet.);
McKowen v. Ragston, 263 S.W.3d 157, 162B63 (Tex.
App.CHouston
[1st Dist.] 2007, no pet.) (permitting infectious diseases physician to opine
on standard of care for treating infection stemming from AV graft even though
defendant doctor was cardiothoracic surgeon); Blan v. Ali, 7 S.W.3d 741,
746B47 &
n.3 (Tex. App.CHouston [14th Dist.] 1999, no
pet.).
An expert report concerning standards of care for
physicians authored by a person who is not qualified to testify cannot
constitute an adequate report. Moore
v. Gatica, 269 S.W.3d 134, 140 (Tex. App.CFort
Worth 2008, pet. denied). A[T]here
is no validity . . . to the notion that every licensed medical
doctor should be automatically qualified to testify as an expert on every
medical question.@
Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). However, Athere
are certain standards of medical care that apply to multiple schools of
practice and any medical doctor.@ Blan, 7 S.W.3d at 746. A physician Awho is
not of the same school of medicine [as the defendant] . . . is
competent to testify if he has practical knowledge of what is usually and
customarily done by a practitioner under circumstances similar to those
confronting the defendant.@ Ehrlich v. Miles, 144 S.W.3d 620, 625
(Tex. App.CFort Worth 2004, pet.
denied). The report must generally
demonstrate that the expert has knowledge, skill, experience, training, or
education regarding the specific issue before the court that would qualify the
expert to give an opinion on that particular subject. Id. (citing Roberts v. Williamson,
111 S.W.3d 113, 121 (Tex. 2003)). Our
analysis of Dr. Berkowitz=s qualifications is limited to
the four corners of the report and curriculum vitae. See Polone v. Shearer, 287 S.W.3d 229,
238 (Tex. App.CFort Worth 2009, no pet.).
C. Dr. Berkowitz Is Statutorily Qualified to Opine
about the Accepted Standards of Care
Dr. Berkowitz=s report
states in relevant part as follows:
I am Board Certified in
Internal Medicine and Infectious Diseases.
I am currently licensed in the State of Texas and am engaged in the full
time practice of Infectious Diseases. Details
of my education, training and experience are included in the accompanying curriculum
vitae, which is incorporated herein. . . .
. . . I am aware of the definitions of negligence,
standard of care, and proximate cause applicable to Denton County, Denton,
Texas, and have relied upon them in the formation of the following
opinions. Further, the care of a
patient with a retained foreign body is within the field of expertise of any
Infectious Diseases specialist. I
have over twenty years of experience in Internal Medicine and Infectious
Diseases, personal knowledge and education, training and experience caring for
this type of patient. [Emphasis
added.]
The addendum to Dr. Berkowitz=s report
states in relevant part as follows:
This addendum will specifically address the issue of responsibility
for retained foreign bodies, and my familiarity with the standards applicable
to this issue.
In my years of experience working with surgeons in hospitals, as well
as my experience on Quality Assurance Committees, it is well known that the
responsibility for assuring that no foreign body is left in a patient is at
least shared by the operating surgeon. This is
even more the case when the surgeon specifically states that the sponge count
is correct.
It is known to me through my years of experience working with
surgeons, as well as my work on Quality Improvement committees, that the use of
radiopaque materials is recommended in the operating room, and that the
appropriate utilization of radiologic studies is indicated to prevent leaving
foreign bodies in the postoperative patient.
This knowledge is neither limited to, nor specific to surgeons or
those who work in the operating room. [Emphasis
added.]
According to his curriculum vitae, Dr. Berkowitz
became licensed to practice medicine in Texas in 1986; he is certified by the
American Board of Internal Medicine and the Subspecialty Board of Infectious
Diseases; he has had an active hospital staff appointment with the Methodist
Hospital System, Baptist Hospital System, and Christus Santa Rosa Hospital
since 1988; he has had an active hospital staff appointment with the Methodist
Ambulatory Surgical Hospital since 1993; he served as Chief of Staff for the
Southwest Texas Medical Hospital from 2002B2003; he
has been a Partner with San Antonio Infectious Diseases Consultants since 1993;
and he has served as Medical Director for the San Antonio Infectious Diseases
Consultants Infusion Center since 1997.
Appellants= chief
complaint regarding Dr. Berkowitz=s
qualifications to opine about the applicable standard of care is that his
report fails to demonstrate that he has sufficient training or experience in
performing surgical or post-operative procedures to prevent the retention of a
sponge following spinal surgery or any surgery.
In other words, they contend that the information contained in his
report and curriculum vitae only qualifies him to opine about the standard of
care for a patient once a retained foreign body has been found as
opposed to procedures to prevent the retention of a sponge. To the extent there is any relevant
distinction, Dr. Berkowitz does not limit his qualifications to opine about the
standard of care for a patient once a retained foreign body has been
found. He states in his report that in
his years of experience working with surgeons in hospitals and on quality
assurance committees, it is well known that the responsibility for assuring
that no foreign body is left in a patient is shared by the operating
surgeon. Dr. Berkowitz also states that
in his years of experience working with surgeons and working on quality
improvement committees, the use of radiopaque materials is recommended in
the operating room and that the appropriate utilization of
radiologic studies is indicated to prevent leaving foreign bodies in the
postoperative patient. Thus,
contrary to Appellants= argument, Dr. Berkowitz=s report
contains information expressly relevant to his qualifications to opine about
the standards of care applicable to procedures to prevent the retention
of a medical sponge following surgery.[2]
Dr. Berkowitz=s report
and curriculum vitae show that he is familiar and has experience with the
condition involved in the claim. See
Thiel, 296 S.W.3d at 267; McKowen, 263 S.W.3d at 162. Peters did not sue Dr. Bradley and Texas Back
Institute for injuries and damages that she incurred as a result of Dr. Bradley=s and
Texas Back Institute=s alleged negligence in regard
to the Ameans,
methods, or manner@ in which Dr. Bradley performed
the microdiskectomy at L5-S1 level with a hemilaminectomy. Rather, Peters sued Dr. Bradley and Texas
Back Institute for injuries and damages that she incurred as a result of Dr.
Bradley=s and
Texas Back Institute=s alleged negligence in leaving
a medical sponge in her body after performing the surgery.[3] The medical condition involved in the claim
thus concerns a physician or health care provider=s
failure to recover a foreign body from a patient after surgery. To qualify as an expert under section 74.401,
Dr. Berkowitz has to demonstrate that he has knowledge, skill, experience,
training, or education regarding this medical condition. See Ehrlich, 144 S.W.3d at 625.
According to his report and curriculum vitae, Dr.
Berkowitz has over twenty years=
experience in internal medicine and infectious diseases, which includes
multiple active hospital staff appointments and serving as Chief of Staff for
the Southwest Texas Medical Hospital; he is engaged in the full-time practice
of infectious diseases; he has personal knowledge, education, training, and
experience caring for patients like Peters; and, significantly, he expressly
opines that the standards of care for a patient with a retained foreign bodyCwhich
includes procedures to prevent the retention of a medical sponge following
surgeryCis
within the field of expertise of any infectious diseases specialist. This information, together with the portions
of his report opining about the standards of care applicable to procedures to
prevent the retention of a medical sponge following surgery, demonstrates that
Dr. Berkowitz has knowledge, skill, experience, training, or education
regarding the condition involved in the claim; he Ahas
practical knowledge of what is usually and customarily done by a practitioner
under circumstances similar to those confronting [Appellants].@ See id.
Appellants do not challenge the adequacy of Dr.
Berkowitz=s report as it pertains to his
opinions about the applicable standard of care, breach of the standard of care,
and causation.[4] Dr. Berkowitz=s report
and curriculum vitae demonstrate his qualifications as an expert witness under
section 74.401 to opine on the issue of whether Appellants departed from the
accepted standards of care applicable to this case. See Tex. Civ. Prac. & Rem. Code
Ann. ' 74.401(a)(1)B(3). Accordingly, in light of the information
contained in Dr. Berkowitz=s report
and curriculum vitae, we hold that the trial court did not abuse its discretion
by denying Appellants= objections to Dr. Berkowitz=s expert
report and Appellants= motion to dismiss Peters=s health
care liability claims. See Wright,
79 S.W.3d at 52. We overrule this part
of Appellants= issue.
Because we overrule the part of Appellants= issue
pertaining to Dr. Berkowitz=s
qualifications, we need not additionally address the portion of their first
issue arguing that res ipsa loquitur is not an exception to the requirement
that Peters serve an expert report. See
Tex. R. App. P. 47.1.
IV. Conclusion
Having overruled the first part of Appellants= issue,
and having determined that we need not reach the remaining part of their only
issue, we affirm the trial court=s orders
denying Appellants= objections to Dr. Berkowitz=s report
and denying Appellants= motion to dismiss Peters=s health
care liability claims.
BILL
MEIER
JUSTICE
PANEL: MCCOY and MEIER, JJ.
DELIVERED: December 23, 2009
[1]See Tex. R. App. P. 47.4.
[2]The cases relied on by
Appellants are therefore inapposite. See
Reardon v. Nelson, No. 14-07-00263-CV, 2008 WL 4390689, at *3B4 (Tex. App.CHouston [14th Dist.]
Sept. 30, 2008, no pet.) (mem. op.); Methodist Health Care Sys. of San
Antonio, Ltd. v. Rangel, No. 04-05-00500-CV, 2005 WL 3445994, at *2B3 (Tex. App.CSan Antonio Dec. 14,
2005, pet. denied) (mem. op.).
[3]Peters alleged in her
original petition that a foreign body was discovered during the emergency
surgery that she underwent on or about August 27, 2007, and that the foreign
body was determined to be a medical sponge that Ahad not been properly
recovered at the close of the previous procedure.@
[4]Dr. Berkowitz identifies
that the applicable standards of care required Dr. Bradley to perform a sponge
and needle count, to perform an x-ray after completing the procedure if
radiopaque sponges were used, and to make appropriate records. He opines that Dr. Bradley breached the
applicable standards of care by leaving a sponge in Peters, by failing to
perform a proper sponge count, and by failing to order an x-ray to determine
whether any sponges had been left inside Peters. Dr. Berkowitz opined that the retained sponge
caused an infection to develop in Peters and that the infection would not have
developed had the sponge not been left inside Peters.
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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
23-JUL-2019
03:36 PM
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAII
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
KAPAHUKULA KALE VOORHEES,
Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 3DTA-13-01893)
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioner/Defendant-Appellant Kapahukula Kale
Voorhees’s application for writ of certiorari filed on June 14,
2019, is hereby accepted.
IT IS FURTHER ORDERED that no oral argument will be
held in this case. Any party may, within ten days and pursuant
to Rule 34(c) of the Hawaii Rules of Appellate Procedure, move
for retention of oral argument.
DATED: Honolulu, Hawaii, July 23, 2019.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
| {
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File Name: 06a0385n.06
Filed: June 1, 2006
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
Case No. 04-3904
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JANELL RUTHERFORD et al., )
)
Plaintiffs-Appellants, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) NORTHERN DISTRICT OF OHIO
CITY OF CLEVELAND et al., )
) OPINION
Defendants-Appellees. )
BEFORE: MOORE, ROGERS, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Appellants, non-minority applicants for the position of police
patrol officer in Cleveland, Ohio (the “City”), filed claims of reverse discrimination and disparate
treatment against the City, the Cleveland Police Department (“CPD”), and several other City
defendants (collectively, the “City defendants”). Appellants’ claims relate to two earlier lawsuits
involving the City’s past discrimination against African-Americans and Hispanics (collectively,
“minorities”) in hiring and promoting by the CPD. The district court approved in those cases a
consent decree that implemented a race-based plan to advance the hiring and promotion of minority
police patrol officers.
In the proceedings below, the City defendants were granted summary judgment. Appellants
sought review, asking this court to reverse. As explained below, we affirm the district court’s
judgment. On Appellants’ reverse discrimination claim, the City’s history of racial discrimination
against minorities – as evidenced by its own admission of discrimination, judicial findings, and
statistical disparities – provided the City defendants with a compelling interest in implementing the
CPD’s temporary race-based hiring plan. Given several important features of the plan, especially
its sunset provision and flexibility, we also find that the plan was narrowly tailored, and thus
survives the strict judicial scrutiny required by the Supreme Court’s equal protection jurisprudence.
On Appellants’ disparate treatment claim, we affirm the district court’s finding that the claims are
without sufficient support in the record.
I. BACKGROUND
A. The Shield Club Lawsuits and Resulting Consent Decree
Although the Appellants do not, strictly speaking, contest the constitutionality of the consent
decree except as it applied to them in 1993-1994, their claims necessarily take aim at several of its
foundations. Thus, we must review the historical record supporting the consent degree. Appellants
take issue only with the hiring practices of the CPD, and not its promoting practices; accordingly,
only the evidence involving the CPD’s hiring history will be reviewed, unless otherwise noted.
In 1966, minorities constituted 6.2% of the CPD police force. In 1972, that figure had risen
to 8.1%. In comparison, minorities made up approximately 40% of the City’s population according
to 1970 census figures. The Shield Club, an organization comprised of minority police officers who
represented the interests of minority officers and applicants, filed a lawsuit against the City, the
CPD, and other defendants alleging racial discrimination in the hiring and promoting of minority
police patrol officers.1
As one of their claims, the Shield Club-plaintiffs maintained that the CPD’s entrance
The Shield Club-plaintiffs filed a subsequent lawsuit against City defendants. The two cases –
1
Nos. C72-1088 and C77-346 – were consolidated.
2
examination discriminated against minorities. The district court agreed, finding that the high failure
rate of minorities compared to the much lower failure rate of non-minorities supported plaintiffs’
prima facie case of discrimination. Shield Club v. City of Cleveland, 370 F. Supp. 251, 253 (N.D.
Ohio 1972). The district court also found that the examinations were not validated for job
performance. Id. Faced with this evidence and no effective rebuttal by the defendants, the district
court concluded that the examinations had a racially discriminatory impact. Id. at 254. The district
court’s conclusion was buttressed by the historical workforce disparities between minorities and
non-minorities. See id. at 255.
As a result, the district court directed the CPD to appoint minorities at a rate no less than
18% of its incoming police patrol officers. Id. The 18% rate was equal to the percentage of
examination passers who were minorities. Id. In response to the deficiencies in the examination,
the district court directed the defendants to create an examination that was job-related. Id. at 256.
Two years later, the district court found that the CPD’s screening procedures used to
determine which applicants, of those who passed the entrance examination, could be appointed as
officers had a racially disparate impact on minorities. Shield Club v. City of Cleveland, No. C 72-
1088, 1974 WL 223, at *2 (N.D. Ohio July 6, 1974). The court ordered defendants to develop and
implement racially-neutral screening procedures. Id. at *3. Faced, however, with a serious shortfall
of officers and without racially-neutral selection procedures available, the district court also directed
the City to hire a specific percentage of minorities as officers. In determining the target, the district
court noted that of the 400 highest ranking applicants based on the 1974 examination, approximately
39.5% were minorities. The court therefore instructed the City that if a significant departure in
officer hiring (more than 2% to 3% below 39%) developed, it would take another look at whether
the City was engaging in racial discrimination. Id. at *3.
3
In 1976, the district court determined that the Chief of Police had a racially discriminatory
purpose in perpetuating under-representation of minorities in certain minority-dominated districts
of the City. Shield Club v. City of Cleveland, No. C72-1088, 1976 WL 736, at *12 (N.D. Ohio Oct.
20, 1976). The court specifically found a “continuing marked under-representation” of minorities
in these districts, without any explanation or justification by the defendants. Id.
Subsequently in 1977, the parties submitted a consent decree to the district court. The parties
entered into the decree to “effectuate an effective prospective remedy designed to eliminate all
vestiges of race discrimination within the City of Cleveland Police Department.” Consent Decree
¶ 1, JA at 586. As to minority officer hiring, the parties stipulated that the CPD would utilize “only
such selection criteria . . . as are non-discriminatory and demonstrably job-related.” Id. ¶ 9, JA at
588. They established a minority-hiring target of not less than 35.8%, a figure “based upon external
labor market figures contained in the 1970 census.” Id. ¶ 12(a), JA at 589. In order to accomplish
this target, the CPD agreed temporarily to hire no less than three minorities for every four non-
minority hires (the “3:4 hiring ratio”). Id. ¶ 12(c), JA at 589.
According to its charter, the City did not employ a pure “examination rank order” system
for hiring officers. Rather, it used what is called the “one-in-three” rule (the “1:3 rule”), which gave
the CPD discretion in selecting one candidate from a group of three qualified candidates. Those
candidates not appointed on the first review remained on the list in their rank order and were
considered again, along with the next highest-ranking candidate, for the next available opening. If
a candidate had been certified and not chosen on four separate occasions, that person was removed
from the eligibility list. The consent decree permitted the CPD to continue to use the 1:3 rule, id.
¶ 10, JA at 588; however, to ensure race played a minimal role in hiring, but also that the 3:4 hiring
ratio was met, the CPD could maintain separate lists of qualified minority and non-minority
4
candidates, id. ¶ 12(c)(5), JA at 590. Qualified minorities were compared against each other,
qualified non-minorities were compared against each other, but minorities were not compared
against non-minorities.
The district court held a hearing to determine whether to approve the consent decree. The
court specifically addressed whether the Shield Club-plaintiffs had proven their claim of a historic
pattern of racial discrimination. While the court had earlier determined that the record had not
convinced it that the Shield Club-plaintiffs had carried their burden, it noted during the approval
hearing that this finding was “not engraved in stone.” JA at 959. The district court specifically
focused on Paragraph 3 of the consent decree. In that paragraph, the parties agreed that the “entire
record” reflected a “history of race discrimination in the hiring practices and in the promotion
practices” of the CPD. Id. In light of this admission by the defendants, the district court found it
unnecessary to hold additional proceedings “to go all through what evidence was spread on this
record for five years.” JA at 960. The district court concluded that the record was sufficient to reach
“an intelligent and objective opinion of the probabilities of ultimate success should the claim be
litigated,” accepting as fact the defendants’ admission of racial discrimination. Id. at 961 (quoting
Flinn v. FMC Corp., 528 F.2d 1169, 1173 (4th Cir. 1975)). The district court placed its imprimatur
on the consent decree in November 1977. At the time, minorities made up 9.2% of the City’s police
officers.2
2
Subsequent to the entry of the consent decree in the Shield Club cases, the City admitted to a pattern
of racial discrimination in its fire department. The Vanguards of Cleveland, an organization of
African-American and Hispanic firefighters, brought similar claims against the City as those
presented in the Shield Club cases. The City likewise entered into a consent decree in that case,
which was contested and upheld. See Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland,
478 U.S. 501 (1986); Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013 (6th Cir. 1994).
As the Supreme Court characterized the City’s position, the City decided to negotiate with the
Vanguards rather than engage in “another round of futile litigation.” Int’l Ass’n of Firefighters, 478
U.S. at 506.
5
Near the end of 1984, the Shield Club-plaintiffs sought to modify and extend the consent
decree. By this time, minorities made up 20.8% of the CPD police force. The defendants initially
opposed such modification and extension. The district court determined that the defendants had met
their obligations as to promotions, but that there remained a question of fact on whether the decree
should be modified and extended as to officer hiring. The parties then submitted an Amended
Consent Decree (the “ACD”) dealing solely with CPD hiring practices. Upon review of the decree,
the district court approved it.
The ACD expressed the parties’ intent to “finally and fully resolve these actions so as to
preclude any further requests for extension and/or modification.” ACD Preamble, JA at 856. The
decree again provided that the defendants would use “only such selection criteria . . . as are non-
discriminatory and demonstrably job related” and that the CPD would continue to use the 1:3 rule.
Id. ¶¶ 2-3, JA at 857.
Specifically as to minority hiring, the ACD required the following:
Temporarily and until such time as 33% of the police officers employed by the City
are minorities or until December 31, 1992 (eight years), whichever time or event
occurs first, defendants shall hire no less than three minority police patrol officers
for every four non-minority police patrol officers, . . . .
Id. ¶ 4(a), JA at 858. In the event the CPD failed to hire a minimum of 70 patrol officers in any year
during the eight-year period, the 3:4 hiring ratio would continue “in full force and effect for one
additional year for each year in which the City shall fail to hire the minimum number of police
patrol officers, unless the City has otherwise achieved the 33% level.” Id. ¶ 4(b), JA at 859. The
decree permitted the CPD to use separate eligibility lists for non-minority and minority candidates
in conjunction with the 1:3 rule. Id. ¶ 4(a)(5), JA at 859.
Throughout the eight-year period, the CPD never reached the target of a 33% minority police
6
force. Moreover, the CPD failed to hire at least 70 police patrol officers in 1986 and 1991.
Accordingly, the CPD was bound under the ACD to continue using the 3:4 hiring ratio until the
earlier of December 31, 1994, or the date when minorities made up 33% of the police force. The
CPD indeed met the 33% target in mid-1994, so the district court concluded that the defendants had
fully complied with the requirements of the decree on that date and that the decree expired under
its own terms.
B. Appellants’ Present Lawsuit
Appellants filed their lawsuit in May 1994, shortly before the ACD expired. Appellants are
non-minority applicants for the position of police patrol officer with the CPD. A portion of them
comprise a sub-class of applicants who allege that as a result of the ACD’s extension into 1993 and
part of 1994, they were never considered for the position even though minority candidates who
ranked lower than they did on the eligibility list were considered. The remaining Appellants are
individuals who were considered for the position in 1993 and 1994, but were rejected by the CPD
based on qualifications that were allegedly not applied to minority applicants who were lower on
the eligibility list, but still hired.
Appellants argue that the application of the City’s race-based hiring plan, as it was applied
in 1993 and 1994, was unconstitutional. Specifically, Appellants claim that the ACD should not
have been applied beyond 1992, and that such application resulted in less qualified minority
applicants being hired as police patrol officers. They argue that had the parties and district court in
the Shield Club cases attempted to develop the type of findings required under the constitution, the
district court would have found that application of the plan in 1993-1994 was not justified by a
compelling governmental interest, nor was it narrowly tailored to achieve such an interest.
7
Furthermore, Appellants contend that they received less-favorable treatment than minorities during
the candidate review and selection process.
In their amended complaint, Appellants set forth five separate causes of action: (1) racial
discrimination in the CPD’s selection of police patrol officers in violation of the Civil Rights Act
of 1871, 42 U.S.C. §§ 1981 and 1983, and the Equal Protection Clause of the Fourteenth
Amendment; (2) loss of property interest in consideration for hire based on examination rank in
violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Due Process Clause of the
Fourteenth Amendment; (3) civil conspiracy in violation of the Civil Rights Act of 1871, 42 U.S.C.
§ 1985(3), and the Equal Protection and Due Process Clauses of the Fourteenth Amendment; (4)
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; and (5) violation of Ohio’s
common law of fraud. On the City defendants’ motion, the district court granted them summary
judgment, finding that Appellants did not have standing to contest the consent decree or its
application. We reversed and remanded to the district court for further proceedings. Rutherford v.
City of Cleveland, 137 F.3d 905, 911 (6th Cir. 1998).
After engaging in discovery, the parties filed motions for summary judgment. The district
court granted summary judgment to the City defendants in two separate decisions. Appellants now
seek appellate review on their equal protection and Title VII claims, as well as their disparate
treatment claims.3
II. ANALYSIS
A. Summary Judgment Under Fed. R. Civ. P. 56(c)
3
Appellants conceded below that summary judgment was appropriate on their common-law fraud
and civil conspiracy claims. Appellants have not pursued on appeal their loss of property claims
related to the CPD police patrol officer positions they were not offered. Accordingly, these
claims are not before us on appeal.
8
We review the factual findings of the district court for clear error, see Brunet v. City of
Columbus, 1 F.3d 390, 410 (6th Cir. 1993), and its legal conclusions, including whether summary
judgment is appropriate, de novo, see Zambetti v. Cuyahoga Cmty. College, 314 F.3d 249, 255 (6th
Cir. 2002) (citation omitted). Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). Under Rule 56(c), a fact is material only if its resolution
will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Whether a factual issue is genuine requires consideration of the applicable evidentiary standards.
Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 451 (6th Cir. 2004).
As the moving parties, the City defendants bear the initial burden of showing that there exists
no genuine issue of material fact to litigate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
court reviews the evidence and draws all reasonable inferences in favor of Appellants as the non-
moving parties. Zambetti, 314 F.3d at 255 (citation omitted). Appellants must show, however, more
than a “mere . . . scintilla of evidence” to defeat summary judgment; “there must be evidence on
which the jury could reasonably find” in their favor. Copeland v. Machulis, 57 F.3d 476, 479 (6th
Cir. 1995) (citation omitted). Moreover, if the City defendants carry their burden of proof, the
burden then shifts to Appellants to “produce evidence that results in a conflict of material fact” to
be resolved by the fact-finder. Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995).
B. Race-Based Classifications Must Survive Strict Judicial Scrutiny
Appellants state that they do not question the constitutionality of the City’s race-based hiring
plan – embodied in the original consent decree and the ACD – as it was applied prior to 1993. They
9
insist instead that their claims arise from application of the ACD in 1993-1994. Yet, if the City’s
affirmative action plan was unconstitutional as originally implemented and amended, it is hard to
fathom how it could be constitutional in 1993-1994. Conversely, if the plan was constitutional in
1977 and 1984, this would be some support for finding it constitutional as it applied in 1993-1994
(given its automatic sunset provision). Moreover, Appellants repeatedly attack the reasoning and
factual record which underpin the original consent decree and the ACD. Thus, while focusing on
the ACD as it applied in 1993-1994, we also address issues touching squarely on the basic
constitutionality of the original consent decree and ACD.
We review the CPD’s hiring decisions, based in part on race, under the Equal Protection
Clause of the Fourteenth Amendment.4 Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273 (1986).
“The Equal Protection Clause prohibits discrimination by government which either burdens a
fundamental right, targets a suspect class, or intentionally treats one differently than others similarly
situated without any rational basis for the difference.” Trihealth, Inc. v. Bd. of Comm’rs, 430 F.3d
783, 788 (6th Cir. 2005). Here, the fundamental right of Appellants “to be treated with equal dignity
and respect” by a public employer without reference to their race was implicated by the City’s
temporary race-based hiring plan. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).
Given this fundamental right of equal protection, it is now beyond question that all racial
preferences instituted by a government actor – even those actions sanctioned, like here, under a
consent decree – must pass strict judicial scrutiny. Grutter v. Bollinger, 539 U.S. 306, 326 (2003);
Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995); Croson, 488 U.S. at 493-94; United
Black Firefighters Ass’n v. City of Akron, 976 F.2d 999, 1008 (6th Cir. 1992). The race of the
4
The Equal Protection Clause guarantees that no State shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
10
challengers to a government’s preference system has no bearing on our analysis: “any person, of
whatever race, has the right to demand that any governmental actor subject to the Constitution
justify any racial classification subjecting that person to unequal treatment under the strictest judicial
scrutiny.” Adarand, 515 U.S. at 224; see also Wygant, 476 U.S. at 273 (“[T]he level of scrutiny does
not change merely because the challenged classification operates against a group that historically
has not been subject to governmental discrimination.”) (citations omitted).
To satisfy strict scrutiny, a race-based remedial plan must be narrowly tailored to accomplish
a compelling governmental purpose or interest. United States v. Paradise, 480 U.S. 149, 167 (1987).
Although a high standard to meet, “[s]trict scrutiny is not ‘strict in theory, but fatal in fact.’” Grutter,
539 U.S. at 326 (quoting Adarand, 515 U.S. at 237). “When race-based action is necessary to
further a compelling governmental interest, such action does not violate the constitutional guarantee
of equal protection so long as the narrow-tailoring requirement is also satisfied.” Id. at 327.
C. Burdens of Proof
Where a race-based remedy is subject to strict judicial scrutiny, as here, the party defending
the remedy bears the initial burden of demonstrating “a strong basis in evidence” that a compelling
governmental interest exists which justifies the remedy. Associated Gen. Contractors of Ohio v.
Drabik, 214 F.3d 730, 735 (6th Cir. 2000) (citing Croson, 488 U.S. at 486-92, 500). This burden
has also been referred to as the “convincing evidence” standard. Wygand, 476 U.S. at 277; United
Black Firefighters, 976 F.2d at 1009-10. If the defending party meets its initial burden, then the
burden shifts to the party challenging the remedy to prove its unconstitutionality. Aiken v. City of
Memphis, 37 F.3d 1155, 1162 (6th Cir. 1994); Brunet, 1 F.3d at 404-05; see also Wygant, 476 U.S.
11
at 277-78.5
D. Compelling Governmental Interest
As we have previously observed, “[t]here is no question that remedying the effects of past
discrimination constitutes a compelling governmental interest.” Associated Gen. Contractors, 214
F.3d at 735 (citing Croson, 488 U.S. at 503; United Black Firefighters, 976 F.2d at 1010-11).
Societal discrimination alone is insufficient, though – the City defendants must make “some
showing of prior discrimination” on their part to justify the “limited use of racial classifications in
order to remedy such discrimination.” Wygant, 476 U.S. at 274; see also Croson, 488 U.S. at 504
(recognizing a compelling interest in a government’s effort to remedy past discrimination for which
it was responsible). Thus, if the City defendants come forward with a strong basis in evidence of
past discrimination in the hiring policies or practices of the CPD, they will have met their initial
burden.
5
There is some dispute on whether the government should instead bear the ultimate burden to
prove the constitutionality of its affirmative action plan in all cases. See, e.g., Concrete Workers
of Colo., Inc. v. City & County of Denver, Colo., 540 U.S. 1027 (2003) (Scalia, J., dissenting
from denial of writ of certiorari) (stating that government should bear ultimate burden of
proving constitutionality of race-based affirmative action plan); Bass v. Bd. of County Comm’rs,
256 F.3d 1095, 1116 (11th Cir. 2001) (stating that “Supreme Court precedent governing equal
protection claims places the burden on a defendant to prove that an affirmative action plan
satisfies strict scrutiny”); Middleton v. City of Flint, 92 F.3d 396, 404 (6th Cir. 1996) (stating
that city had to “prove” it had a compelling interest and that the remedy was narrowly tailored).
The Supreme Court’s recent decision in Gratz v. Bollinger appears to lend support to this
position, at least in the education context. 539 U.S. 244, 270 (2003) (“To withstand our strict
scrutiny analysis, respondents must demonstrate that the University’s use of race in its current
admissions program employs ‘narrowly tailored measures that further compelling governmental
interests.’”) (quoting Adarand, 515 U.S. at 227). Even if the ultimate burden of proof were to be
placed on the City defendants, we find that they have provided sufficient evidence to meet this
burden. Thus, we leave to another day the question of whether parties challenging a remedial
race-based plan bear the ultimate burden of proof (as do most parties challenging government
action) or rather that burden should be placed on the government-defendants given the important
equal protection issues involved.
12
Establishing a strong basis in evidence is not an easy burden to meet. “The only cases found
to present the necessary ‘compelling interest’ sufficient to ‘justif[y] a narrowly tailored race-based
remedy’ are those that expose . . . ‘pervasive, systematic, and obstinate discriminatory conduct.’”
Associated Gen. Contractors, 214 F.3d at 737 (quoting Adarand, 515 U.S. at 237). “[A]n
amorphous claim that there has been past discrimination in a particular industry” is not enough.
Vogel v. City of Cincinnati, 959 F.2d 594, 599 (6th Cir. 1992) (quoting Croson, 488 U.S. at 499).
To begin, the City’s own admission of its history of discriminating against minorities in CPD
hiring – a position it fought against in litigation for a number of years – is persuasive evidence of
“pervasive, systematic, and obstinate discriminatory conduct.” This is not a case in which a
government body makes a finding that societal discrimination affects a particular industry, such as
in Croson and Adarand. Nor is this a case in which a government body expressly maintains that it
did not engage in unlawful racial discrimination. See, e.g., Aiken, 37 F.3d at 1158. This is a case,
rather, in which a governmental defendant admits its own culpability – against its own interests at
the time – in past racial discrimination. These are critical distinctions. See Vogel, 959 F.2d at 600
(recognizing distinction between affirmative action plans based on generalized discrimination in an
industry versus discrimination by a city in hiring its own police force).
The City’s admission was not simply made in a newspaper article, press release, or in some
other voluntary, public forum, but in a consent decree approved by and entered as a judgment of the
district court. A race-based hiring plan embodied in a consent decree “stands somewhere in between
a voluntary affirmative action program (as in Wygant) and a remedial plan that a court has imposed
after making a formal finding of intentional discrimination (as in United States v. Paradise . . . ), for
a consent decree is a hybrid that has ‘attributes both of contracts and of judicial decrees.’” Donaghy
v. City of Omaha, 933 F.2d 1448, 1459 (8th Cir. 1991) (quoting Int’l Ass’n of Firefighters, 478 U.S.
13
at 519). On the one hand, as a form of “contract founded on the agreement of the parties, . . . [i]t
should be construed to preserve the position for which the parties bargained.” Vogel, 959 F.2d at 598
(citations omitted). On the other hand, as a form of judgment, “[w]hile the entry of an affirmative
action consent decree does not guarantee that the decree serves a remedial purpose . . . , the
heightened judicial oversight inherent in a properly entered decree helps attain that end.” Donaghy,
933 F.2d at 1459. Here, both aspects – contractual and judicial – weigh in favor of giving real effect
to the City’s admission of past discrimination.
A party can also demonstrate a strong basis in evidence by showing that a court made a
finding of past discrimination. Wygant, 476 U.S. at 289; see also Boston Police Superior Officers
Fed’n v. City of Boston, 147 F.3d 13, 20 (1st Cir. 1998) (explaining that a “strong basis” in evidence
can be based on a “contemporaneous or antecedent finding of past discrimination by a court or other
competent body”) (citation omitted). As recounted above, the district court made several findings
of discrimination prior to 1977 against the City. During its review of the consent decree in 1977,
the district court concluded that the record supported the City’s admission of a history of race
discrimination within the CPD. It subsequently reaffirmed this position by entering the ACD as a
judgment of the court in 1984.
A review of the statistical evidence also supports the City’s admission and the district court’s
findings of discrimination. While evidence of “mere statistical disparities” is not enough by itself
to show a compelling interest, Associated Gen. Contractors, 214 F.3d at 736 (citing Croson, 488
U.S. at 501-02), a prima facie case of discrimination can be made where “a gross disparity exists
between the expected percentage of minorities selected [for hire] and the actual percentage of
minorities selected [for hire],” United Black Firefighters, 976 F.2d at 1011 (emphasis added); see
also Croson, 488 U.S. at 509 (plurality op., O’Connor, J.) (explaining that a prima facie case of
14
discrimination can arise “[w]here there is a significant statistical disparity between the number of
qualified minority contractors willing and able to perform a particular service and the number of
such contractors actually engaged by the locality or the locality’s prime contractors”); Aiken, 37 F.3d
at 1163 (“It is settled that appropriate statistical evidence setting forth a prima facie case of
discrimination is sufficient to provide a strong basis in evidence to support a public employer[’s]
affirmative action plan.”) (internal quotations omitted; emphasis in original); Vogel, 959 F.2d at 599
(“Evidence of wide statistical disparities . . . may justify an affirmative action policy adopted by a
public employer.”) (citation omitted).
The record is replete with gross statistical disparities between the treatment of minorities and
non-minorities by the CPD. For example, the district court found that in the 1970s, minorities
constituted 23% of those taking the entrance examination, but represented 64% of those who failed.
Minorities had a failure rate of 26.3% compared to a rate of 4.5% for non-minorities. Shield Club,
370 F. Supp. at 253. Throughout the 1970s, 1980s, and early 1990s, the percentage of minorities
in the CPD officer force tracked below – often quite significantly – the level of minorities in the
general population, the percentage of examination takers who were minorities, and the percentage
of examination passers who were minorities. This court has found that similar disparities supported
a finding of racial discrimination. See, e.g., Vogel, 959 F.2d at 600.
Appellants cite to this court’s decision in Middleton for support of their position that the
statistical disparities do not warrant a finding of compelling interest. That case is distinguishable
on a number of important points. First, as the court noted at the very beginning of its analysis, the
City of Flint’s plan was not presented as part of a motion for a judicially approved consent decree,
but rather was voluntarily conceived as part of the normal political process. Middleton, 92 F.3d at
401. Thus, there was no heightened judicial review of the plan before its implementation nor any
15
prior judicial findings of discrimination. The city relied upon general population statistics rather
than also considering the relevant labor pool. Id. at 406-08. The court was further concerned about
several serious deficiencies in the city’s expert statistical analysis. Id. None of these shortfalls exist
here.6
Appellants also argue that even if there was a compelling interest justifying the race-based
remedy in 1977 and 1984, surely there was no such interest in 1993 and 1994. As evidence, they
point to the convergence of the CPD’s minority police force percentage to the 33% target. Yet, in
determining whether the governmental body had a compelling interest, a reviewing court should
focus on the evidence of discrimination existing at the time the body enacted the race-based remedy.
See Shaw v. Hunt, 517 U.S. 899, 910 (1996) (holding that “the institution that makes the racial
distinction must have had a strong basis in evidence to conclude that remedial action was necessary,
before it embarks on an affirmative-action program.”) (internal quotation omitted, emphasis in
original); In re City of Memphis, 293 F.3d 345, 350-51 (6th Cir. 2002) (noting same). This and other
courts have “considered evidence of prior discrimination occurring years before” enactment of a
race-based remedy, sometimes finding the evidence convincing, see, e.g., Vogel, 959 F.2d at 600
(considering evidence of discrimination nine years before affirmative action plan instituted; upheld
plan), Stuart v. Roache, 951 F.2d 446, 453 (1st Cir. 1991) (considering evidence of discrimination
ten years before affirmative action plan instituted; upheld plan), and other times finding it
6
This court’s decision in Long v. City of Saginaw is likewise distinguishable. In that case, we
reversed a district court’s grant of summary judgment to city officials over an amendment to the
city’s race-based hiring plan for its police department. 911 F.2d 1192 (6th Cir. 1990). We found that
there was no compelling interest for the plan because, in part, there had never been a complaint of
discrimination lodged against the city, nor had there been any adjudication or formal findings of
discrimination against the city in its hiring of officers. Id. at 1197. Without some record of
discrimination, we concluded that the city’s admission against interest was insufficient by itself to
justify the remedial measures. Id. at 1198. The city’s statistical evidence also suffered from
numerous defects which are not present here. Id. at 1199-200.
16
unconvincing, see, e.g., Brunet, 1 F.3d at 409 (finding evidence of discrimination 14 years before
enactment of affirmative action plan “too remote”). Here, the historical and contemporaneous
evidence of discrimination in the 1970s and 1980s provided the Shield Club parties and the district
court with a strong basis in evidence for the necessity of the original consent decree in 1977 and its
amendment in 1984.
Finally, a valid race-based remedy is not limited to alleviating the current practice of racial
discrimination, but can also address the “lingering effects” of such discrimination. See Adarand, 515
U.S. at 237; see also Dean v. City of Shreveport, 438 F.3d 448, 456-57 (5th Cir. 2006) (explaining
that courts should consider whether “lingering effects of past discrimination still necessitate a race-
conscious remedy”) (citing Paradise, 480 U.S. at 169-70; Police Ass’n of New Orleans v.
Cannatella, 100 F.3d 1159, 1168-69 (5th Cir. 1996)). This is necessarily the case in which the race-
based remedy extends beyond the immediate moment into the future, when presumably the practice
of discrimination has halted, but its effects are still felt. As discussed in more detail infra Sections
II.E.2 and 4, the vestiges of racial discrimination had not been sufficiently relieved by 1992 and
therefore the City defendants remained bound by the terms of the ACD.
Thus, with the admission by the City of past racial discrimination, supported by the findings
of the district court and a review of the statistical evidence, the City defendants have shown
convincing evidence of a compelling interest in increasing the number of qualified minorities among
the CPD’s ranks. We now turn to determine whether the City defendants crafted a measured, narrow
remedy designed to attain that end.
E. Narrowly Tailored Remedy
As explained by the Supreme Court, “[t]he purpose of the narrow tailoring requirement is
17
to ensure that ‘the means chosen “fit” th[e] compelling goal so closely that there is little or no
possibility that the motive for the classification was illegitimate racial prejudice or stereotype.’”
Grutter, 539 U.S. at 333 (quoting Croson, 488 U.S. at 493). There is no single “best” remedy –
courts and other government bodies enjoy some discretion in remedying racial discrimination.
Paradise, 480 U.S. at 185 (“While a remedy must be narrowly tailored, that requirement does not
operate to remove all discretion from the District Court in its construction of a remedial decree.”);
Donaghy, 933 F.2d at 1461 (noting that “there is no universal answer to the problem of remedying
racial discrimination” and that trial courts have sound discretion in fashioning remedy). Yet, as the
district court in the Shield Club case succinctly noted, “[o]nly tough choices, each freighted with
some weakness and the risk of individual or group inequities” face the body charged with remedying
past discrimination. Shield Club, 370 F. Supp. at 254.
In determining whether the City’s race-based remedial measure was narrowly tailored, the
court must look to the following factors: “the necessity for the relief and the efficacy of alternative
remedies; the flexibility and duration of the relief, including the availability of waiver provisions;
the relationship of the numerical goals to the relevant labor market; and the impact of the relief on
the rights of third parties.” Paradise, 480 U.S. at 171 (citation omitted). These are not elements –
the ACD need not satisfy each and every item to survive strict scrutiny. See Ashton v. City of
Memphis, 49 F. Supp.2d 1051, 1056 (W.D. Tenn. 1999). Rather, after reviewing the ACD in light
of all the factors, the court must be satisfied that the remedy is narrowly tailored to meet its remedial
purpose. See id. Moreover, the fact that the ACD was reviewed and approved by the district court
weighs in favor of finding that it was narrowly tailored. See Donaghy, 933 F.2d at 1459 (finding
relevant the “heightened judicial oversight” of the affirmative action plan in determining whether
it was narrowly tailored).
18
1. Necessity for the Race-Based Remedy and Efficacy of Alternative Remedies
To determine whether the CPD’s race-based hiring plan was necessary, it is important to
consider first the goal of the plan. The parties in the Shield Club lawsuits (by agreeing to the
consent decree) and the district court (by entering the decree as a judgment) intended to ameliorate
the effects of the City’s past racial discrimination against African-Americans and Hispanics by
temporarily increasing the number of these minorities hired as police patrol officers. Accordingly,
the plan was appropriately focused on only the group of minorities proven to have been subjected
to discriminatory practices. Croson, 488 U.S. at 506-07 (explaining that remedy must be “linked to
identified discrimination” and not suffer from “gross overinclusiveness”).
Appellants argue, however, that application of the remedial plan in 1993-1994 was not
necessary for two reasons. First, Appellants argue that its application was not necessary in light of
the City’s use of job-validated examinations and screening procedures for a number of years prior
to 1993-1994. They also assert that the CPD hired “substantially more than the number of
minorities between 1985 and 1992 than required by the terms” of the ACD. Given this, Appellants
maintain, the plan was unnecessary in 1993-1994 to eradicate any remaining vestiges of
discrimination. Both arguments fail on close examination.
A job-validated examination “identifies those skills important to a particular job and tests
those skills.” Brunet, 1 F.3d at 394. The use of validated, non-discriminatory hiring procedures can,
under certain circumstances, be an acceptable alternative to race-based relief. See Aiken, 37 F.3d at
1164. For example, when a governmental body makes decisions based solely on the rank-order
results from a job-validated examination, the race of the examination taker will not factor into the
hiring decision. Over time, the effects of past discrimination should eventually dissolve away as the
effects of the meritocracy begin to dominate.
19
In this case, however, the job-validated examinations and screening procedures were not
effectively remedying the effects of past discrimination at the time the City entered the ACD.
Although the patrol officer examination was validated in 1974, by 1984 the City’s proportion of
minority officers had only reached 20.8%. The 3:4 hiring ratio simply sped up the City’s progress
towards achieving its goal of a police workforce made up of 33% minority officers. The Supreme
Court has held that hiring ratios are permissible as a means to regulate the speed of progress towards
fulfilling a race-based plan’s goal. Paradise, 480 U.S. at 179-80.7
In support of its second argument, Appellants point out that the City hired an average of 84.6
police patrol officers per year during the 1985-1992 period, exceeding the ACD’s annual minimum
of 70 officers. By application of the 3:4 hiring ratio, this meant that the CPD hired more minorities
(on average) than it would have if it had hired only 70 officers per year during that period. Thus,
according to Appellants, there was no need for the remedial measures in 1993-1994.
As recognized by the district court, however, there is no basis in the ACD for this
calculation. Appellants contest here the interpretation of the ACD, rather than its constitutionality.
Although they have standing to challenge the ACD’s constitutionality, Rutherford, 137 F.3d at 911,
as non-parties to the decree, they do not have standing to enforce their understanding of its terms,
Aiken, 37 F.3d at 1167-68; Vogel, 959 F.2d at 598. The City defendants were bound to follow the
terms of the ACD, not some hypothetical plan now suggested by the Appellants. See W.R. Grace
& Co. v. Local Union 759, Int’l Union of The United Rubber, Cork, Linoleum & Plastic Workers,
461 U.S. 757, 766 (1983) (“It is beyond question that obedience to judicial orders is an important
7
We also point out that the that the CPD did not hire police patrol officers based purely on their
examination score rankings – it had a measure of discretion in choosing candidates by operation of
the 1:3 rule. Thus, there is no guarantee that use of a validated examination alone would have
ameliorated the past effects of racial discrimination in the workforce.
20
public policy. An injunction issued by a court acting within its jurisdiction must be obeyed until the
injunction is vacated or withdrawn.”) (citation omitted)).
Moreover, a brief review of Appellants’ argument shows that it is without merit. The CPD
continued to operate under the ACD in 1993-1994 because it failed to hire 70 officers in two
different years during the initial 8-year period. Appellants are correct that, even with this two-year
shortfall, the average number of officers hired per year exceeded 70. Thus, under their argument,
the fact that the consent decree extended the 3:4 hiring ratio for two years even though the average
hires exceeded 70 per year shows that the decree was not narrowly tailored.
Other than pointing to the average annual-hire figure, Appellants do not show how the 70-
officer minimum rule somehow violates the constitution. In fact, had the ACD included a rule
consistent with Appellant’s position – i.e., that the average number of hires per year should control
– such a rule could have plausibly extended the race-based hiring plan well beyond the original
expiration date, thus making the ACD more, not less, susceptible to attack on “narrowly tailored”
grounds.8,9
8
To illustrate, assume 75 police officers were hired each year from 1985 to 1991; however, in
1992, assume the City placed a freeze on all officer hiring for one year. Also assume that from
1993 forward, the CPD again hired 75 officers per year. Under the ACD, the 3:4 hiring ratio
would have been extended for one year. Under a rule in which the average must be 70 in the
final year for the decree to expire, however, it would take 15 years, beginning in 1985, for the
average to reach 70.
9
In his concurring opinion, Judge Rogers states that the ACD was “open-ended depending on the
actions of the City,” and concludes that “[a] consent decree that permits affirmative action as an
ongoing option, rather than as a limited requirement, should not so easily be maintained by relying
on the discriminatory situation faced at the time of the original decree.” In this particular case,
however, we find that the minimum-70-officer rule made sense for several reasons, including: (a)
the possibility of financial hardships causing the City to fall short in remedying past discrimination
(which was one of the reasons for amending the original consent decree); and (b) the possibility
(given the City’s prior history of discrimination) that the City might try to thwart the goals of the
consent decree by simply freezing hiring or hiring only a relatively few number of officers during
the eight-year period of the consent decree. See, e.g., McNamara v. City of Chicago, 138 F.3d 1219,
1223 (7th Cir. 1998) (noting hiring freeze by the city immediately after it agreed to hire a higher
21
2. Duration of Race-Based Remedy
Appellants next argue that the remedial measures extended too far in time in comparison
with the discrimination the measures were meant to remedy. Courts view with disfavor those
affirmative action plans that are not temporary and do not terminate when the identified racial
imbalances have been eliminated. See, e.g., Aiken, 37 F.3d at 1164; Detroit Police Officers Ass’n
v. Young, 989 F.2d 225, 228 (6th Cir. 1993); Paradise v. Prescott, 767 F.2d 1514, 1531 (11th Cir.
1985). As this court has noted, “[n]arrow tailoring . . . implies some sensitivity to the possibility that
a [race-based] program might someday have satisfied its purposes.” Associated Gen. Contractors,
214 F.3d at 737. It is also important to understand, however, that “[r]emedial action takes time . .
. and discrimination may linger for many years in an organization.” Boston Police, 147 F.3d at 20
(internal quotations omitted).
To determine whether the length of any race-based hiring plan is properly attuned with the
workforce shortfall caused by discrimination, the reviewing court should consider the extent of the
shortfall and the reasonable likelihood that it will be ameliorated promptly. Unlike some other plans
struck down or questioned by this court,10 the ACD was not intended to be a long-term or permanent
remedy, as it contained a flexible, self-executing sunset provision. This provision ensured that the
decree would last no longer than necessary to remedy (or approach remedying) the workforce
minority shortfall caused by past racial discrimination. The decree further provided for an
percentage of minorities for fire department; when freeze ended, percentage of minorities remained
unchanged). While the reasonableness of the rule does not, by itself, make the decree narrowly
tailored, it is certainly a factor in its favor.
10
See, e.g., Assoc. Gen. Contractors, 214 F.3d at 737-38 (noting with disapproval the lack of a
sunset provision in legislation providing racial preferences in state contracts); Aiken, 37 F.3d at
1164 (finding that the city’s failure to make any effort to limit the duration of remedy “cut[]
against” finding it was narrowly tailored).
22
automatic, temporary extension in the event that: (a) the CPD did not hire at least 70 officers in any
particular year; and (b) the 33% target had not yet been met. In this case, the plan continued for
slightly less than two years as a result of this provision. Thus, this is not a plan which was “timeless
in [its] ability to affect the future.” Wygant, 476 U.S. at 276.
Appellants point to the fact that in 1992, the percentage of minorities in the CPD (29.6%)
was closely approaching the 33% target. They assert that the CPD had substantially met the target,
and therefore the ACD’s continuation into 1993-1994 was unjustified. This argument would be
stronger if the workforce convergence had occurred in the beginning or middle of the plan’s
intended duration, rather than near the end. Of course, any responsible race-based hiring plan should
have as its ultimate goal the attainment of the target at the natural end of the life of the plan. The
fact that the percentage of minorities on the CPD’s police force was approaching the 33% target near
the end of the plan is a testament to the plan’s efficacy, not its unconstitutionality. Furthermore, the
fact remains that although the ACD was successful in increasing the percentage of minorities in the
CPD, the 33% target was not met until mid-1994. Once the target was met, the plan terminated of
its own accord and did not reach beyond the length of time necessary to alleviate the remaining
vestiges of identified discrimination.
3. Flexibility and Impact on Third Parties
Appellants next claim that the City’s affirmative action plan did not contain sufficient
flexibility. On the contrary, the ACD included several provisions giving the CPD flexibility in
hiring officers. First, the decree precluded the City from hiring unqualified minority applicants.
This is an important feature of any well-designed race-based hiring plan. Vogel, 959 F.2d at 599
(noting with approval that the affirmative action plan required “the hiring only of qualified blacks
23
and women; it [did] not require the selection of unqualified blacks or women over qualified white
males” (emphasis in original)). The City graded the examinations blindly, without reference to the
race of applicants. If qualified minority candidates were not available from a given list, the decree
provided that another entrance examination be offered and lists of qualified candidates be drawn
from that separate examination. Appellants have provided no evidence that the CPD hired
unqualified candidates in contravention of the decree.
Nor did the decree mandate that the CPD had to hire a certain number of minorities each and
every year. The 70-officer minimum rule gave the CPD the option of hiring fewer than 70 officers
in a given year if, for example, there was an insufficient number of qualified candidates that year.
The CPD could then make up this shortfall in a later year, if necessary. This feature provided the
CPD with flexibility in meeting its hiring needs with only qualified candidates. See Paradise, 480
U.S. at 177-78 (noting with approval a similar measure).
Furthermore, the decree did not require that incumbent non-minorities be terminated to make
room for minority applicants. Of course, “initial employment opportunities coupled with hiring
goals may burden some innocent individuals.” Vogel, 959 F.2d at 599 (quoting Long, 911 F.2d at
1196-97). This type of remedy, however, does “not impose the same type of intrusive injuries that
layoffs, which result in loss of job expectancy, security, and seniority, involve.” Id.; see also
Paradise, 480 U.S. at 182-83 (noting with approval that 1:1 hiring requirement did not require layoff
and discharge of non-minority employees); Wygant, 476 U.S. at 283 (finding that the denial of future
employment is not as intrusive as the loss of an existing job). Finally, non-minorities were not
barred from hire – the CPD maintained separate lists of qualified minority and non-minority
candidates and hired candidates from both lists. Vogel, 959 F.2d at 599 (noting with approval that
affirmative action plan did not “present a complete bar to non-minorities”). With these provisions,
24
the ACD contained sufficient flexibility with minimal impact on third parties to meet equal
protection concerns.
4. Relationship of Numerical Target with Relevant Labor Market
The court must also consider the relationship between the ACD’s numerical target and the
relevant labor market. The “relevant labor market” is defined as the number of minority applicants
who were actually qualified for the job – the “qualified labor pool.” For jobs requiring no special
qualifications, the relevant labor pool is often simply the pool of minorities within the local general
population. See Croson, 488 U.S. at 501. The CPD requires special qualifications for its police
patrol officers, however, such as passing entrance and physical examinations, psychological and
medical evaluations, and a background investigation. Accordingly, the court must look to the pool
of minorities actually qualified to be police patrol officers when comparing this pool to the 33%
target. See id. at 501-02 (noting that “where special qualifications are necessary, the relevant
statistical pool for purposes of demonstrating discriminatory exclusion must be the number of
minorities qualified to undertake the particular task”).
The parties offer two different definitions of the qualified labor pool: (a) of those people who
qualified to take and actually took the examination, the percentage who were minorities (the City
defendants’ qualified labor pool); and (b) of those people who passed the examination, the
percentage who were minorities (Appellants’ qualified labor pool). While both proposed definitions
find support in the record, the distinction between the two proffered definitions is, in this case, one
without a difference. Even under Appellants’ stricter definition, there is a sufficiently close
relationship between the qualified labor pool and the ACD’s numerical target.
25
There exists no set formula for determining whether the 33% target fits “close enough” to
the qualified labor pool. The question, rather, is whether the target represents “a plausible lower-
bound estimate of a shortfall in minority representation” among the CPD resulting from racial
discrimination. McNamara, 138 F.3d at 1224 (citing, among other cases, this circuit’s decision in
Aiken, 37 F.3d at 1165). The parties provide minority examination flow data for four separate years:
1982, 1989, 1992, and 1994. The percentage of examination passers who were minorities range
from a low of 30.6% to a high of 47.3% (the percentage range of minority examination takers equals
41.0% to 52.3%). Specifically, the percentage of passers in 1982 who were minorities was 47.3%;
in 1989, 45.6%; in 1992, 30.6%; and 1994, 33.7%.
Appellants point to the fact that in 1992, the percentage of passers who were minorities
(30.6%) was almost identical to the percentage of minorities on the police force (29.6%). The year-
to-year fluctuations in the qualified labor pool, however, are of little to no relevance to whether the
plan was narrowly tailored. While there may be long-run demographic trends which drive the
average of the percentage of examination passers who are minorities close to 33% (or, more likely,
a higher percentage equal to the percentage of minorities residing in the City), there is nothing to
suggest that the examination pass rate in 1992 had any direct or causal relationship to the minority
police force figure of that same year. The annual pass rates undoubtedly exhibited a certain element
of randomness from year-to-year, while the minority police force percentage was being driven to
33% by operation of the 3:4 hiring ratio.
The better comparison in this case is between the ACD’s target of 33% and the range of
minority examination passers over the years. Given that the annual pool of qualified candidates
from which the CPD had to choose ranged between 30.6% to 47.3% minority candidates (using the
26
Appellants’ more conservative definition) over the relevant years, a workforce target of 33% was
sufficiently related to the qualified labor pool, if not a bit conservative.
The fact that the 33% target was at the lower bound of the conservative qualified labor pool
further illustrates that the 29.6% minority workforce in 1992 was not “close enough” to the target
for the CPD to have ignored the terms of the ACD and stopped using the 3:4 hiring ratio in 1993-
1994. The standard is not whether the CPD had come close to satisfying the terms of the ACD, but
rather “whether the vestiges of past discrimination had been eliminated to the extent practicable.”
Jansen, 977 F.2d at 244 (quoting Bd. of Educ. of Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237,
250 (1991)) (emphasis added). Certainly, the percentage of minorities in the CPD workforce was
increasing throughout the 1980s and early 1990s. Even so, the CPD had not yet reached the 33%
target, the level at which the parties agreed, the district court approved, and we confirm, was a
reasonable lower-bound measure of the relevant qualified labor pool. Within the context of the
ACD as a whole – a temporary plan, the City’s admitted history of discrimination, and a modest
target – we find that the CPD did not err in following the terms of the ACD in 1993-1994 even
though it was approaching the target in 1992.
Finally, Appellants take issue with the 3:4 hiring ratio, arguing that the rate of hire (42.9%)
far exceeded the 33% target. As a matter of simply comparing the percentages, they are correct.
Yet, Appellants ask us to compare apples to oranges. The 33% figure represents the CPD police
force minority target; the 3:4 hiring ratio represents the speed to which the target was to be met. As
explained supra Section II.E.1, there is nothing unconstitutional about the 3:4 hiring ratio as a
reasonable rate of hire to meet the 33% minority workplace target. Paradise, 480 U.S. at 179-80
(approving 1:1, or 50%, hiring rate to meet 25% minority workplace target).
27
F. The ACD Satisfies Equal Protection Concerns
Given the modest workforce target, the sunset provision, and the various flexibility
provisions, we find that the ACD was narrowly tailored to remedy the City’s past discrimination
against minorities. The City defendants did not violate the Appellants’ rights under the Equal
Protection Clause or Title VII of the Civil Rights Act by following the ACD in 1993-1994.11
Accordingly, the district court properly granted judgment to the City defendants on these claims.
G. Appellants’ Disparate Treatment Claims
In addition to their claim that the ACD, as a whole, violated their constitutional and statutory
rights, several of the individual Appellants also argue that they faced disparate treatment by the City
defendants. Specifically, they argue that the CPD’s use of the 1:3 rule shielded less-qualified
minority applicants from competition against them. They also allege they were victims of reverse
discrimination because the City defendants used background checks and selection procedures
against them in a disparate manner.
Appellants do not suggest here that any of the minority candidates hired in 1993 or 1994
were not qualified. They insist, rather, that for various reasons they were more qualified than some
of the minority candidates who were ultimately hired. As explained by the district court, however,
“[d]egrees of qualification” are not the proper focus here.
As already discussed, rather than relying on a pure rank-order rule, the City hired officers
using the 1:3 rule in conjunction with separate minority and non-minority candidate lists. Thus,
within the framework of the 1:3 rule, minorities were compared against other minorities, and non-
11
Although a public employer’s obligations under the Equal Protection Clause and Title VII are not
identical, Brunet, 1 F.3d at 405, Appellants have not argued that their Title VII claims relating to
the ACD’s application in 1993-1994 differ in any way from their equal protection claims.
28
minorities were compared against other non-minorities.12 Any leniency afforded minority
candidates on the minority eligibility list would affect only other minority candidates, and not the
individual Appellants. It is only when one steps outside the 1:3 framework and views the ACD as
a whole that it can be said that Appellants were treated differently than minority candidates. Yet,
as explained above, the different treatment of minority and non-minority candidates under the
remedial hiring plan met constitutional muster.
On Appellants’ claim of reverse discrimination based on the City’s background checks and
screening procedures, the district court correctly found that Appellants failed to show that the CPD
was “that unusual employer who discriminates against the majority.” Murray v. Thistledown Racing
Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985) (citation omitted). Appellants were not similarly situated
to minorities who were allegedly treated more favorably. Accordingly, the district court properly
granted summary judgment to the City defendants on Appellants’ disparate treatment claims.
III. CONCLUSION
For the reasons provided above, we AFFIRM the district court’s grant of summary judgment
in favor of the City defendants.
This feature distinguishes the present case from Voels v. New York, 180 F. Supp.2d 508
12
(S.D.N.Y. 2002), relied upon by Appellants in their reply brief. The government actor in that
case also used a 1:3 hiring rule, but with the critical difference being that separate lists of
minorities and non-minorities were not maintained. Thus, in any group of three, minorities and
non-minorities were likely competing directly against each other.
29
KAREN NELSON MOORE, Circuit Judge, concurring. I join in the majority’s opinion
but write separately to respond to the concurring opinion’s suggested narrowing of the category of
individuals entitled to relief due to past discrimination. The concurring opinion could be read to
state that only a plan benefitting those individuals who suffered discrimination themselves or who
were “around at the time the discrimination took place” will survive strict scrutiny analysis; it
further states that “a limited remedy of, for example, up to 10 years” would be permissible for the
latter group. Concurring Op. at 1-2. This part of the concurrence is based upon the following
statement from City of Richmond v. J. A. Croson Co., 488 U.S. 469, 508 (1989): “But the interest
in avoiding the bureaucratic effort necessary to tailor remedial relief to those who truly have suffered
the effects of prior discrimination cannot justify a rigid line drawn on the basis of a suspect
classification.” (emphasis added). However, Croson does not imply that those who suffer the
effects of prior discrimination must have been “around at the time the discrimination took place.”
Such a conclusion would fail to acknowledge the key distinction between eliminating facially
discriminatory policies and the continuing effects of historically institutionalized racial
discrimination; it would also fail to acknowledge that ten years will often be an unrealistic amount
of time in which to eradicate the effect of years — often many decades — of discrimination. “As
long as significant specified effects linger, affirmative action may be justified despite the
implementation of valid selection procedures. Public employees cannot escape their constitutional
responsibilities merely by adopting facially-neutral policies that institutionalize the effects of prior
discrimination and thus perpetuate de facto discrimination.” Ensley Branch, NAACP v. Seibels, 31
F.3d 1548, 1575 (11th Cir. 1994) (citing United States v. Fordice, 505 U.S. 717, 729 (1992)).
30
ROGERS, Circuit Judge, concurring. I concur entirely in the majority opinion. I write
separately to acknowledge two troubling aspects of our decision, and to identify an additional
consideration supporting our judgment.
Between 1972 and 1977, the City defended a lawsuit in which the Shield Club argued that
the City had discriminated in its hiring, transfers, and promotions of minority police officers. The
City maintained throughout that it had never discriminated against minorities. Nevertheless, after
years of litigation and findings of intentional discrimination by the district judge, the City entered
into a consent decree governing hiring and promotions within its police department.
In 1984, the Shield Club moved to modify and extend the consent decree. The City opposed
the motion, but it ultimately agreed. A decade later, despite faithfully following the terms of the
ACD, the City once again was forced to defend against allegations of racial discrimination when the
appellants brought the present lawsuit in May 1994, just one month before the ACD reached its goal
in June 1994. This time, however, the City was targeted not for discriminating against minorities,
but for discriminating against nonminorities by following the terms of the ACD. The plaintiffs
argued that the ACD should not have been extended beyond 1992, and thus that the City had been
acting illegally for the subsequent year and a half in complying with the ACD.
Had this case instead been brought in 1992 to modify or terminate the consent decree, the
reasoning of the majority opinion might well have supported continuation of the decree. Two
factors, however, give me pause in reaching that conclusion.
First, the ACD arguably had been in place too long to be narrowly tailored. In an affirmative
action plan seeking to remedy past discrimination, there are essentially three possible groups that
stand to benefit: (1) those actually discriminated against, (2) those not actually discriminated against
but who are members of the same group as those discriminated against and who were around at the
31
time the discrimination took place (justifying a limited remedy of, for example, up to 10 years), and
(3) other members of that group at any time (as an extreme example, 75 years after the
discrimination). In this case, the minority recruits are mostly members of the third group because
few of them would have been old enough to be hired as a police officer when the discrimination took
place in the 1970s.
In City of Richmond v. J.A. Croson Co., the Supreme Court’s analysis brings into question
whether a plan benefitting only group three survives strict scrutiny:
[T]he Richmond Plan’s waiver system focuses solely on the availability of MBE’s;
there is no inquiry into whether or not the particular MBE seeking a racial preference
has suffered from the effects of past discrimination by the city or prime contractors.
Given the existence of an individualized procedure, the city’s only interest in
maintaining a quota system rather than investigating the need for remedial action in
particular cases would seem to be simple administrative convenience. But the
interest in avoiding the bureaucratic effort necessary to tailor remedial relief to those
who truly have suffered the effects of prior discrimination cannot justify a rigid line
drawn on the basis of a suspect classification.
488 U.S. 469, 508 (1989) (emphasis added). In addition, Justice Stevens noted:
The class of persons benefitted by the ordinance is not, however, limited to victims
of such discrimination—it encompasses persons who have never been in business in
Richmond as well as minority contractors who may have been guilty of
discriminating against members of other minority groups. Indeed, for all the record
shows, all of the minority-business enterprises that have benefitted from the
ordinance may be firms that have prospered notwithstanding the discriminatory
conduct that may have harmed other minority firms years ago.
Id. at 515 (Stevens, J., concurring). Similarly, the minority recruits that benefitted from the ACD
extension were hired even though they may have never suffered from the effects of racial
discrimination. Of course, on the other hand, it is impossible to know who would have been hired
under a nondiscriminatory system when, during the pendency of the consent decree, a separate
32
remedial quota system was in place. Perhaps some of the young minority beneficiaries of the ACD
in the early 1990s who would not have been hired without the ACD would have been hired had there
never been any discrimination.
Second, the consent decree was open-ended depending on the actions of the City. By
continually hiring fewer than seventy police officers per year, the City could have extended the ACD
indefinitely. A consent decree that permits affirmative action as an ongoing option, rather than as
a limited requirement, should not so easily be maintained by relying on the discriminatory situation
faced at the time of the original decree. The reasonableness of the 70-per-year rule in terms of
protecting minorities from city evasion of consent decree requirements does not necessarily imply
that the rule is narrowly tailored for purposes of protecting the interests of nonminority applicants
adversely affected by the decree.
While these considerations may in the end not have been sufficient to warrant modification
of the ACD two years before it reached its goal, they at least raise serious concerns as to whether
the decree continued to be narrowly tailored at that point. We do not need to resolve the issue
because, in my view, a somewhat more deferential approach is required when, instead of moving
to modify the decree, the officers sued after the fact for retroactive relief based on the failure of the
City to violate the decree.
To award damages against the City because it failed to violate a consent decree would be
troubling for a number of reasons. First, it would be inequitable to force the City to pay damages
for faithfully implementing the affirmative action plan that it had challenged for years in court. The
case would be different if the City entered into a consent decree that was clearly illegal at the time,
or if the City subsequently ignored a new decision or statute that made it clear that its conduct was
illegal. But when the City entered into the ACD, the Supreme Court had yet to announce in Croson
33
that strict scrutiny should be used in evaluating state and local affirmative action programs. See 488
U.S. at 493-94. There is little doubt that, in 1984, the affirmative action program was legal under
existing caselaw. Even after United States v. Paradise, 480 U.S. 149 (1987), Croson, and
subsequent cases were decided, it was not immediately clear that the extension of the ACD was
unconstitutional.
Second, permitting retrospective relief would place parties like the City in a problematic
legal position. A party is bound by a court order even if the party strongly disagrees with the order.
If we award damages for failure to violate a court order, we are in some sense telling the party that
it should have violated the order. Perhaps when compliance with a court order clearly violates the
constitutional rights of third parties, a party should violate the order and use its legal position to
defend the enforcement of contempt sanctions against it. But where the illegality of the order is not
so clear, certainly a party ought to comply. This shows the respect for the system that is necessary
on the part of responsible participants in our ordered republic.
Instead of violating a court order perceived to be illegal, a party should generally litigate to
modify the order. One might certainly argue that the City should have sought a modification of the
ACD as soon as the argument became tenable that the decree was not narrowly tailored. But such
an obligation to seek to modify cannot require a litigant (here the City) to challenge a decree
continuously during its pendency. Such an obligation also arguably disrespects the system,
especially where the judicial order resulted from vigorous litigation, as here, and where the change
in factual and legal circumstances was not clearly marked. Thus, for us to reverse the district court
in this case and impose retrospective relief for failure to violate the decree, we should determine not
only that the decree would properly have been modified had modification been timely sought, but
also that the unconstitutional nature of compliance with the decree was sufficiently clear to the City
34
as to require the City to have returned to court in 1992 to lift the decree. In my view, for the reasons
given in the majority opinion, we cannot say that the ACD was so clearly unconstitutional as to
require the City sua sponte to have sought modification in 1992, and we need not decide the closer
question of whether such a modification would have been required had it been sought by the officers
at the time.
35
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE CASTELLINO VILLAS, No. 12-57186
A. K. F. LLC,
Debtor, D.C. No.
2:12-cv-07282-JFW
PICERNE CONSTRUCTION CORP.,
DBA Camelback Construction, OPINION
Appellant,
v.
CASTELLINO VILLAS, A. K. F.
LLC,
Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted February 4, 2015
Submission Vacated March 13, 2015
Resubmitted August 29, 2016
Pasadena, California
Filed September 6, 2016
2 IN RE CASTELLINO VILLAS
Before: Michael J. Melloy,* Jay S. Bybee,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
SUMMARY**
Bankruptcy
The panel affirmed the district court’s affirmance of the
bankruptcy court’s order denying a motion for post-discharge
attorneys’ fees arising from state court litigation filed by the
plaintiff against the debtor.
The panel held that attorneys’ fees incurred by the
plaintiff during litigation after confirmation of the debtor’s
Chapter 11 bankruptcy plan were discharged by that
bankruptcy. Plaintiff’s claim for attorneys’ fees arose before
the debtor filed its bankruptcy petition, and plaintiff’s post-
discharge conduct did not amount to a whole new course of
litigation. Accordingly, under the circumstances of this case,
the attorneys’ fees claim was discharged.
*
The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
IN RE CASTELLINO VILLAS 3
COUNSEL
Scott E. Hennigh (argued), Meredith A. Jones-McKeown, and
Scott A. Vignos, Sheppard Mullin Richter & Hampton LLP,
San Francisco, California, for Appellant.
Beth Ann R. Young (argued), Ron Bender (argued), and
Krikor J. Meshefejian; Levene, Neale, Bender, Yoo & Brill
LLP, Los Angeles, California, for Appellee.
OPINION
IKUTA, Circuit Judge:
We are asked to determine whether the bankruptcy court
erred as a matter of law by holding that attorneys’ fees
incurred during litigation after the confirmation of a Chapter
11 bankruptcy plan were discharged by that bankruptcy. We
have jurisdiction under 28 U.S.C. § 158(d). Picerne’s claim
for attorneys’ fees arose before Castellino filed its bankruptcy
petition, and Castellino’s post-discharge conduct did not
amount to “a whole new course of litigation,” Siegel v. Fed.
Home Loan Mortg. Corp., 143 F.3d 525, 534 (9th Cir. 1998).
Therefore, under the circumstances of this case, Picerne’s
attorneys’ fees claim was discharged in Castellino’s
bankruptcy.
I
Castellino Villas LLC (Castellino) hired Picerne
Construction Corp. dba Camelback Construction (Picerne), a
general contractor, to construct a 120-unit apartment complex
on Castellino’s property. Picerne and Castellino entered into
4 IN RE CASTELLINO VILLAS
an agreement for the work that contained an attorneys’ fees
provision, which stated, in pertinent part:
Attorneys’ Fees. In any suit, action or
proceeding between the parties arising out of,
or in connection with, any of the terms,
covenants, provisions or agreements in the
Agreement, the prevailing party in such suit
. . . shall be awarded . . . all reasonable
attorneys’ fees incurred before any trial or
proceeding, at all trials or proceedings and on
all appeals.
Castellino defaulted on its obligations and failed to pay
Picerne and its subcontractors for their work. In response,
Picerne filed a demand for arbitration and a mechanic’s lien
against the apartment complex. A few months later, Picerne
filed a complaint in California Superior Court to foreclose on
the mechanic’s lien. Picerne later amended the complaint to
add Castellino’s lender, Bank of the West, as a defendant. In
response, Bank of the West asserted that its deed of trust on
Castellino’s property, which it held as security for
Castellino’s $14 million debt to the Bank, was superior to
Picerne’s mechanic’s lien.
The court stayed Picerne’s action in May 2007 to permit
arbitration in accordance with the contract. On May 11,
2009, the arbitrator issued an award in favor of Picerne. The
superior court confirmed the arbitration award on July 24,
2009. That same day, Castellino filed a Chapter 11 petition
for bankruptcy. The bankruptcy filing automatically stayed
Picerne’s foreclosure action, see 11 U.S.C. § 362(a), but the
bankruptcy court granted Picerne’s motion to lift the stay so
that the parties could continue to litigate the mechanic’s lien
IN RE CASTELLINO VILLAS 5
action in state court. Castellino disputed the validity, priority,
and amount of Picerne’s lien.
In bankruptcy court, Picerne filed an objection to
confirmation of Castellino’s proposed plan of reorganization.
In order to obtain confirmation of its plan, Castellino entered
into a settlement agreement with Picerne. The settlement
agreement provided that if Picerne’s foreclosure action in
state court resulted in a determination that Picerne’s
mechanic’s lien was a “valid, properly perfected and
enforceable mechanics lien against the Castellino property”
and was senior to the Bank’s lien, Picerne would receive
specified payments from the trust account which Castellino
would fund. The parties expressly did not agree as to whether
Picerne was entitled to interest, costs or attorneys’ fees if it
prevailed on its claim; the settlement agreement stated that
“Castellino contends that under no circumstance is Picerne
entitled to interest, attorneys’ fees or costs” as part of its
claim, and “Picerne disputes said contention.” Castellino
reserved its defenses relating to the state court litigation. The
settlement agreement also provided that upon the court’s
approval of the settlement terms, Castellino’s plan of
reorganization would be modified to include those terms and
Picerne would withdraw its objection to the confirmation of
the plan as modified. Finally, the parties entered into mutual
releases, agreeing to release “any and all claims, demands,
and causes of action . . . that exist as of the date of this
Agreement or any time prior thereto.”
After a hearing, the bankruptcy court approved the
settlement agreement, and confirmed Castellino’s plan of
reorganization, as modified to conform to the settlement
agreement. As a result, Castellino was discharged from
bankruptcy.
6 IN RE CASTELLINO VILLAS
Pursuant to the plan and settlement agreement, the parties
continued litigating the mechanic’s lien action in state court.
After a nine day trial, the state court held that Picerne’s
mechanic’s lien was valid and had priority over the Bank’s
lien, and the court entered judgment for Picerne in the amount
of some $2.6 million (including prejudgment interest).
Picerne moved for an award of attorneys’ fees. The state
court held that under the bankruptcy court’s order, it lacked
the authority to adjudicate or award attorneys’ fees, so it
denied the motion without prejudice. Castellino appealed the
decision to the California Court of Appeal.
While the appeal was pending, Picerne moved the
bankruptcy court for a ruling that the state court had the
authority to award attorneys’ fees. Picerne argued that
although it initiated litigation before Castellino filed its
petition in bankruptcy, it was entitled to an award of
attorneys’ fees that were incurred after the confirmation of
Castellino’s plan, citing In re Ybarra, 424 F.3d 1018 (9th Cir.
2005). Picerne also argued that the releases in the settlement
agreement and plan of reorganization did not preclude it from
seeking post-confirmation attorneys’ fees.
The bankruptcy court denied the motion. It reasoned that
when Picerne sued Castellino, the contract between the
parties gave Picerne a contingent and unliquidated claim for
attorneys’ fees. Because this claim arose before Castellino
filed a petition in bankruptcy, it was discharged by the
confirmation of Castellino’s plan of reorganization or was
IN RE CASTELLINO VILLAS 7
released by the parties’ settlement agreement. The district
court affirmed, and Picerne timely appealed.1
On appeal, Picerne contends that the bankruptcy court
erred in denying its motion for post-discharge attorneys’ fees.
First, Picerne argues that its claim for attorneys’ fees arising
from litigation in state court arose after Castellino filed its
petition in bankruptcy and therefore was not discharged by
the confirmation of Castellino’s plan of reorganization.
Relying on In re Ybarra, Picerne argues that when a newly
reorganized debtor voluntarily “returns to the fray” of
litigation that began before filing a bankruptcy petition, the
debtor is not free from liability for attorneys’ fees incurred
after discharge. 424 F.3d at 1023–24. Second, Picerne
contends that its settlement agreement with Castellino
released only “existing claims,” and not claims for attorneys’
fees incurred after the settlement agreement was approved by
the court.2 We review a bankruptcy court’s factual findings
for clear error and its conclusions of law de novo. In re
Gebhart, 621 F.3d 1206, 1209 (9th Cir. 2010).
II
We first consider when claims for attorneys’ fees are
discharged in bankruptcy. The confirmation of a plan of
reorganization under Chapter 11 “discharges the debtor from
1
We vacated submission after hearing oral argument pending the
resolution of Castellino’s appeal of the state trial court’s ruling. The
California Court of Appeal affirmed the trial court and held that Picerne
had a valid mechanic’s lien that was superior to the Bank’s deed of trust.
See Picerne Constr. Corp. v. Villas, 244 Cal. App. 4th 1201 (2016).
2
We do not reach this issue because we conclude that the attorneys’
fees were discharged by Castellino’s bankruptcy.
8 IN RE CASTELLINO VILLAS
any debt that arose before the date of such confirmation”
except as provided in the statute, the plan, or the order
confirming the plan. 11 U.S.C. § 1141(d)(1) (emphasis
added).3 “Debt” is liability on a “claim.” 11 U.S.C.
§ 101(12). “Claim” is defined to include a “right to payment,
whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured.”
11 U.S.C. § 101(5). A “creditor” is defined to include an
“entity that has a claim against the debtor that arose at the
time of or before the order for relief concerning the debtor.”
11 U.S.C. § 101(10).
A claim is “contingent” when “the debtor will be called
upon to pay [it] only upon the occurrence or happening of an
extrinsic event which will trigger the liability of the debtor to
the alleged creditor.” In re Fostvedt, 823 F.2d 305, 306 (9th
Cir. 1987) (internal quotation marks omitted). A claim is
“unliquidated” when it is not “subject to ready determination
and precision in computation of the amount due.” Id.
3
Although § 1141(d)(1) provides that a Chapter 11 debtor is generally
discharged from any pre-confirmation debts, we have sometimes referred
to pre-petition claims in discussing whether claims discharged in a
Chapter 11 bankruptcy have subsequently been revived. See, e.g., In re
SNTL Corp., 571 F.3d 826, 843–44 (9th Cir. 2009). Other courts have
recognized a similar inconsistency. See In re Manville Forest Prods.
Corp., 209 F.3d 125, 128 n.1 (2d Cir. 2000) (noting “an inconsistency
between the wording of the Bankruptcy Code, which discharges debt
arising before the confirmation date” and its statement in a prior decision
“that the discharged debt must arise before the filing date”). As in
Manville Forest, we need not resolve that point here because it is
undisputed that the claim at issue arose before Castellino filed its Chapter
11 bankruptcy petition, and therefore the claim necessarily also arose
before the confirmation date. For simplicity, we will refer to prepetition
claims throughout this opinion.
IN RE CASTELLINO VILLAS 9
(internal quotation marks omitted). “This broadest possible
definition of ‘claim’ is designed to ensure that all legal
obligations of the debtor, no matter how remote or
contingent, will be able to be dealt with in the bankruptcy
case.” In re Jensen, 995 F.2d 925, 929 (9th Cir. 1993)
(internal quotation marks omitted). “The breadth of the
definition of ‘claim’ is critical in effectuating the bankruptcy
code’s policy of giving the debtor a ‘fresh start.’” Id.
“[F]ederal law determines when a claim arises under the
Bankruptcy Code.” In re SNTL Corp., 571 F.3d 826, 839 (9th
Cir. 2009). We have recognized that under some
circumstances, a creditor may have a claim against a debtor
for attorneys’ fees, even though the creditor has not yet
incurred those fees.4 For instance, where the debtor and
creditor have entered into a contract that includes an
attorneys’ fees agreement, the creditor may be deemed to
have a contingent claim for payment of attorneys’ fees even
before any fees are incurred. See id. at 843 & n.18 (“[W]hen
a creditor’s right to payment for fees exists prepetition [in a
Chapter 7 case], the right to payment constitutes a ‘claim,’
within the meaning of § 101(5)(A), albeit an unliquidated,
unmatured claim.” (quoting In re New Power Co., 313 B.R.
496, 508 (N.D. Ga. 2004))). Such a contingent claim would
then include attorneys’ fees incurred during and after the
bankruptcy case. “In general, if the creditor incurs the
attorneys’ fees postpetition [in a Chapter 7 case] in
connection with exercising or protecting a prepetition claim
that included a right to recover attorneys’ fees, the fees will
be prepetition in nature, constituting a contingent prepetition
4
The Bankruptcy Code defines any party with a contingent,
unliquidated prepetition claim against the debtor for attorneys’ fees to be
a “creditor.” See 11 U.S.C. § 101(10).
10 IN RE CASTELLINO VILLAS
obligation that became fixed postpetition when the fees were
incurred.” Id. at 844 (quoting 5 Collier on Bankruptcy
§ 553.03[1][i] (15th ed. Updated 2007)). Said otherwise,
when the creditor had a prepetition contingent claim for
attorneys’ fees, even attorneys’ fees incurred after that date
may be discharged in bankruptcy.
In determining whether a creditor’s claim arose
prepetition, we use the “fair contemplation” test. Under this
test, “a claim arises when a claimant can fairly or reasonably
contemplate the claim’s existence even if a cause of action
has not yet accrued under nonbankruptcy law.” Id. at 839;
see also In re Jensen, 995 F.2d at 930–31. For instance, in
Jensen we held that when a state environmental regulatory
agency was aware that the groundwater at the debtors’ site
was seriously contaminated before the debtors filed a
bankruptcy petition, a contingent claim for cleanup costs was
in the “fair contemplation” of the state at the time the debtors
filed their Chapter 7 petition. Id. The state’s claim for
cleanup costs was therefore discharged in bankruptcy, even
though the state incurred nearly a million dollars in cleanup
costs after the discharge. Id. Accordingly, if a creditor and
debtor are engaged in prepetition litigation pursuant to a
contract that includes an attorneys’ fees provision, and the
creditor “can fairly or reasonably contemplate” that it will
have a claim for attorneys’ fees if an “extrinsic event” occurs
(that is, if it prevails in the litigation), then the creditor’s
claim for attorneys’ fees will be discharged in the debtor’s
bankruptcy even if the creditor incurs attorneys’ fees after the
debtor was discharged. See In re SNTL Corp., 571 F.3d at
839; In re Fostvedt, 823 F.2d at 306.
Despite the breadth of this rule, attorneys’ fees incurred
by a creditor pursuant to an agreement will not always be in
IN RE CASTELLINO VILLAS 11
the “fair contemplation” of the parties. See, e.g., Siegel v.
Fed. Home Loan Mortg. Corp., 143 F.3d 525; see also In re
Ybarra, 424 F.3d 1018. In Siegel, the debtor defaulted on
two real estate loans and then filed a bankruptcy petition.
143 F.3d at 527. The lender’s claims were resolved in the
bankruptcy, and the debtor received a discharge. Id. But the
debtor subsequently brought a lawsuit in state court (later
removed to federal court) against the lender, arguing that the
lender breached the deed of trust. Id. at 527–28. The district
court granted the lender’s motion for summary judgment, and
the court awarded the lender attorneys’ fees pursuant to the
deed of trust. Id. at 531. We affirmed, rejecting the debtor’s
argument that his discharge in bankruptcy included the
lender’s claim for attorneys’ fees. Id. at 533. We reasoned
that a claim for attorneys’ fees is a contingent claim only
where the potential for incurring post-discharge liability was
contingent “upon what others might do” and “entirely out of
[the debtor’s] hands before he entered bankruptcy.” Id. But
where the debtor voluntarily undertook a new course of
litigation, which we described as a decision “to return to the
fray,” id. at 533, any new liability for attorneys’ fees
constituted a post-discharge cost. Id.
We addressed a similar situation in Ybarra. In that case,
a debtor first brought a suit for employment discrimination
against her employer in state court. 424 F.3d at 1020. Some
eight months later, the debtor filed a Chapter 11 bankruptcy
petition, which was subsequently converted to Chapter 7. Id.
The trustee for the debtor’s bankruptcy estate negotiated a
settlement agreement with the employer, which was approved
by the bankruptcy court. Id. The state court then dismissed
the lawsuit. Id. Despite the dismissal of the lawsuit, the
debtor took affirmative actions “to revive the state suit.” Id.
at 1020, 1027. The debtor claimed her cause of action against
12 IN RE CASTELLINO VILLAS
the employer constituted exempt property, litigated this issue
in bankruptcy court, and (after prevailing on appeal), rejected
the settlement agreement and “successfully persuaded the
state court to set aside the dismissal.” Id. at 1020. The debtor
lost in state court and the employer was awarded attorneys’
fees and costs. Id. at 1020–21 Because the bankruptcy court
had previously granted the debtor a discharge, the employer
moved the bankruptcy court for leave to enforce the state
award of fees and costs. Id. at 1021. The debtor claimed the
award was discharged in bankruptcy. Id.
We disagreed. Following Siegel, we noted that “the
award of post-petition attorney fees was not discharged”
where the debtor returned to the fray by engaging in the
“initiation of new litigation” post-petition. Id. at 1023–24
(citing Siegel, 143 F.3d at 534). We concluded that “post-
petition attorney fee awards are not discharged where post-
petition, the debtor voluntarily pursue[d] a whole new course
of litigation, commenced litigation, or return[ed] to the fray
voluntarily.” Id. at 1024 (alterations in original) (internal
quotation marks omitted). We therefore rejected the debtor’s
argument that the state lawsuit “should be considered
continuous litigation, rather than the commencement of a new
suit post-petition,” and we instead concluded that the debtor’s
“actions to revive the state suit were sufficiently voluntary
and affirmative to be considered ‘returning to the fray.’” Id.
at 1027; see also In re Sure-Snap Corp., 983 F.2d 1015,
1018–19 (11th Cir. 1993) (holding that when a debtor’s
liabilities under an agreement were discharged in bankruptcy,
but the debtor challenged the validity of the agreement
through a post-discharge appeal “initiated” by the debtor, the
debtor can be held liable for attorneys’ fees under the
agreement).
IN RE CASTELLINO VILLAS 13
The analysis in these cases is consistent with our fair
contemplation test. When parties engage in prepetition
litigation that could lead to an award of attorneys’ fees, they
may fairly contemplate that the prevailing party will be
awarded those fees. Therefore, a creditor’s contingent claim
to such fees is discharged in bankruptcy, even if some fees
are incurred post-petition. But when the prepetition litigation
is resolved in bankruptcy so that any claim (including a
contingent claim for attorneys’ fees) against the debtor would
be discharged, we cannot say that the debtor’s affirmative
action to commence what amounts to “a whole new course of
litigation,” Siegel, 143 F.3d at 534, was in the fair
contemplation of the parties when the debtor filed a
bankruptcy petition. Rather, the debtor’s decision to eschew
the fresh start provided by bankruptcy and engage in new
litigation is more akin to post-petition conduct that, by
definition, was not in the fair contemplation of the parties
prepetition. Cf. O’Loghlin v. County of Orange, 229 F.3d
871, 875 (9th Cir. 2000) (holding that a debtor who engages
in postpetition illegal discriminatory conduct can be held
liable for that conduct, even if claims for similar illegal
discriminatory conduct occurring before the bankruptcy were
discharged).
III
We now turn to Picerne’s claim for attorneys’ fees related
to the state court litigation. Picerne argues it is entitled to
attorneys’ fees under an expanded reading of Ybarra and
Siegel. According to Picerne, if a debtor continues to litigate
a prepetition claim after discharge, and takes any affirmative
steps beyond what is necessary to extricate itself from the
litigation, the debtor has chosen to “return to the fray,” Siegel,
143 F.3d at 533, and any attorneys’ fees incurred were not
14 IN RE CASTELLINO VILLAS
discharged. Here, Picerne contends, Castellino did more than
attempt to extricate itself from the state court litigation: it
brought a motion for summary judgment, opposed Picerne’s
motion for summary judgment, took party and non-party
discovery, and made a request for attorneys’ fees.5 Therefore,
according to Picerne, Castellino engaged in the sort of post-
discharge conduct that makes it liable for post-discharge
attorneys’ fees.
We disagree. Because Picerne and Castellino had entered
into a contract with an attorneys’ fees provision, and Picerne
commenced an action under that contract against Castellino
in state court before Castellino filed a Chapter 11 bankruptcy
petition, Picerne’s contingent claim for attorneys’ fees arose
before both the filing of Castellino’s bankruptcy petition and
the confirmation of Castellino’s plan. Further, the
preconfirmation settlement agreement between Picerne and
Castellino required the parties to complete the state court
litigation. Under these circumstances, Picerne could fairly
and reasonably contemplate that it would incur attorneys’ fees
associated with the state court litigation and would have a
claim for attorneys’ fees under the agreement if it prevailed.
Contrary to Picerne’s argument, Ybarra and Siegel are not
implicated here. Unlike the debtors in those cases, Castellino
was not relieved of liability under its agreement with Picerne
and given a fresh start by its discharge in bankruptcy. Rather,
the parties agreed that Picerne’s action against Castellino
would continue after discharge. Indeed, in order to obtain
Picerne’s agreement to withdraw its objections to the plan of
5
During the bankruptcy proceedings, Castellino disputed that it made
a claim for attorneys’ fees, stating that it made a single, mistaken request
for attorneys’ fees and did not pursue the claim.
IN RE CASTELLINO VILLAS 15
reorganization, Castellino and Picerne agreed to litigate
Picerne’s mechanic’s lien claim to conclusion, and the terms
of the plan of reorganization were conditioned on the results
of the litigation. Nor did Castellino “pursue a whole new
course of litigation,” Siegel, 143 F.3d at 534, after receiving
a discharge. Rather, it merely continued to litigate the single
legal action that Picerne had commenced before Castellino
filed a petition in bankruptcy. Nothing in the agreement or in
the definition of “claim” suggests that Castellino’s efforts to
defend itself in the ongoing litigation were outside the fair
contemplation of the parties. We decline to adopt Picerne’s
expanded reading of Ybarra and Siegel, which is inconsistent
with our fair contemplation test. The pertinent question is
whether the right to obtain attorneys’ fees in the litigation is
within the fair contemplation of the parties, and Picerne
provides no reason why it would not have fairly contemplated
that the parties would proceed with litigation that had not
been resolved in bankruptcy.
We conclude that under the circumstances of this case,
Picerne could “fairly or reasonably contemplate” that it would
have a claim for attorneys’ fees if it prevailed in the state
litigation before Castellino filed its petition for bankruptcy.
Therefore, the district court correctly determined that the
claim was discharged when the bankruptcy court confirmed
Castellino’s plan.6
AFFIRMED.
6
Because we decide the case on this ground, we need not reach
Castellino’s argument that Picerne’s release of “any and all claims”
pursuant to the settlement agreement precluded it from recovering
attorneys’ fees.
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179 Ariz. 123 (1994)
876 P.2d 1158
STATE of Arizona, Appellee,
v.
Shirley AVERYT and Robert Averyt, Appellants.
Nos. 1 CA-CR 92-0557, 1 CA-CR 92-0558.
Court of Appeals of Arizona, Division 1, Department D.
March 8, 1994.
Review Granted July 11, 1994.
*125 Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., and Jon G. Anderson, Asst. Atty. Gen., Phoenix, for appellee.
Barry Becker, Phoenix, for appellants.
Burch & Cracchiolo, P.A. by Stephen E. Silver and Stephen M. Hart, Phoenix, for amicus curiae.
OPINION
GERBER, Judge.
Shirley and Robert Averyt (the Averyts) were found guilty by a jury of three counts of failure to file an Arizona income tax return for the years 1987, 1988, and 1989, class 5 felonies, in violation of Ariz. Rev. Stat. Ann. ("A.R.S.") section 42-137(B)(4). After granting the state's motion to dismiss the allegation of Hannah[1] priors, the trial court placed the Averyts on probation for three years and imposed one-year, flat-time jail terms as a condition of probation. On appeal, the Averyts challenge the constitutionality of the statute supporting their convictions. They also challenge the trial court's ruling regarding the elements of the crime charged. In this opinion, we hold that the statute is constitutional; however, we find that the trial court erred in failing to instruct the jury on an essential element of the offense. We therefore reverse the convictions and sentences and remand for a new trial.
BACKGROUND
In February 1991, the Arizona Department of Revenue ("ADOR") began investigating the Averyts regarding their failure to file state income tax returns for 1987, 1988, and 1989. The Averyts were interviewed by two ADOR criminal investigators. Mr. Averyt admitted that the couple did not file returns for 1988 and 1989; however, he thought that they had filed a return for 1987. Mrs. Averyt told investigators that she knew that they had not filed returns for the three years in question. She stated that she was responsible for keeping the couple's tax records, while Mr. Averyt was responsible for the actual completion and filing of the returns. The Averyts claimed during their interviews that they had been involved in several complicated real estate transactions in 1988 and 1989 and did not know how to prepare the returns for those years. Mr. Averyt told the investigators that he did not have the money to hire an accountant to prepare the returns.
Prior to trial, the Averyts filed a motion to dismiss the indictment. They claimed that because they subsequently filed their delinquent *126 tax returns, the criminal violations had been cured. They also claimed that if the statute did not allow such a cure, then it was unconstitutionally vague for failing to specify the date upon which criminal liability commences. The trial court denied the motion. The court noted that A.R.S. section 43-325 requires income tax returns to be filed by April 15. It found that the Averyts' criminal liability therefore commenced on April 16. The court further found that A.R.S. section 42-137(B)(4), when read in context with A.R.S. section 43-325, provided adequate notice and was not unconstitutionally vague.
The prosecutor filed a motion in limine prior to trial in which he sought to preclude both the testimony of a defense expert and the introduction of the Averyts' tax returns for 1987, 1988, and 1989. The Averyts sought to introduce the expert's testimony and the returns in support of their position that they believed their duty to file tax returns required that they file only accurate tax returns; until they could file accurate returns, they felt that they did not have a duty to file. They contended that the testimony of the expert witness and the copies of their tax returns were necessary to demonstrate the legitimacy of this belief to the jury.
The prosecutor argued that, under Arizona law, the state has no duty to prove that the Averyts knew they had a legal duty to file their tax returns. The prosecutor maintained that the proffered evidence therefore was irrelevant. The trial court agreed and granted the state's motion to preclude the evidence.
After hearing the testimony of the two ADOR investigators, the jury returned guilty verdicts on all counts.
The Averyts raise two issues in this consolidated appeal:
1) Is A.R.S. section 42-137(B) unconstitutionally vague?
2) Did the trial court err in its jury instruction regarding the elements of the crime?
DISCUSSION
I. Constitutionality of the Statute
The Averyts contend that the statute under which they were convicted, A.R.S. section 42-137(B), is susceptible to more than one interpretation. They assert that the statute is unconstitutionally vague regarding the point in time at which criminal liability attaches and regarding the element of intent. We disagree.
In analyzing such a challenge, this court is required to construe the statute so that, if fairly possible, it will be constitutional. Schecter v. Killingsworth, 93 Ariz. 273, 282, 380 P.2d 136, 142 (1963). A penal statute will be held to be vague if "it fails to give persons of average intelligence reasonable notice of what behavior is prohibited...." State v. Steiger, 162 Ariz. 138, 141, 781 P.2d 616, 619 (App. 1989). The due process requirement of a fair and definite warning, however, does not mandate absolute precision. Id.
When Criminal Liability Attaches
Prior to trial, the Averyts filed a motion to dismiss the indictment. They claimed that the failure of A.R.S. section 42-137(B)(4) to expressly set forth the date upon which criminal liability attaches indicates that the legislature intended to allow taxpayers the opportunity to unilaterally terminate a criminal prosecution by filing their returns at any time prior to conviction. Such a construction, however, effectively renders the statute a nullity. See State v. Crisp, 175 Ariz. 281, 282-83, 855 P.2d 795, 796-97 (App. 1993) (appellate court will presume the validity of an ordinance unless it clearly appears otherwise); see also State v. Cook, 139 Ariz. 406, 408, 678 P.2d 987, 989 (App. 1984) (under the rules of construction there is a presumption in favor of constitutionality). Furthermore, this contention can only be supported by reading the statute in a vacuum, without regard to the tax code as a whole.
Title 42 of the Arizona Revised Statutes sets forth the provisions governing the tax laws in general. A.R.S. § 42-101 to -1836. Title 43 sets forth the provisions governing the taxation of income by the state. A.R.S. § 43-101 to -1413. The time for filing state income tax returns is set forth within A.R.S. section 43-325 as follows: "Unless otherwise *127 indicated, returns made on the basis of the calendar year shall be filed on or before the fifteenth day of April following the close of the calendar year." (Emphasis added.)
The provisions governing criminal violations of the tax law are set forth under the general administrative provisions of the code within A.R.S. section 42-137. Subsection B of this statute, under which the Averyts were convicted, provides in pertinent part: "It is a class 5 felony to ... [k]nowingly fail to file a return or supply required information...." Because a different filing date is not "otherwise indicated" within A.R.S. section 42-137(B)(4), the filing date expressly set forth within A.R.S. section 43-325 applies. See Redewill v. Superior Court, 43 Ariz. 68, 75-76, 29 P.2d 475, 478 (1934) (where there is a general statute on a subject and another dealing with a part of the same subject, it is a general rule of construction that the two shall be read together and harmonized to give full effect to legislative intent).
The Averyts argue that the placement of the statute governing criminal violations for the failure to file a return within Title 42 violates the notice requirements of due process because a person who seeks information on all of the statutes regarding Arizona income tax would turn only to Title 43, where he would find no provisions governing the criminal consequences of his failure to file his income tax return. This argument is without merit.
The table of contents to Title 43 directs the reader to chapter 8 for a review of the statutes governing interest and penalties for income tax violations. A review of chapter 8 in the supplement to Title 43 clearly informs the reader that the penalty sections have been repealed and lists the cross-references for the new statutes by section within Title 42. A.R.S. § 43-842 (Supp. 1993).
In sum, A.R.S. sections 42-137(B)(4) and 43-325, read together, give fair warning that the knowing failure to file a tax return on or before the fifteenth day of April following the end of the calendar year subjects one to criminal liability. Thus, the failure to file statute is not vague with respect to when criminal liability attaches.
Vagueness of the Mens Rea Requirement
As an alternative argument, the Averyts contend that the mental state of "knowingly" required by A.R.S. section 42-137(B)(4) is ambiguous unless equated with the definition of "willfully" in the federal tax code. They allege that, in the absence of such an interpretation, the statute criminalizes seemingly innocent or merely negligent omissions. They present several hypothetical situations in support of this argument.
We need not consider whether the statute is vague when applied to these hypothetical situations because the Averyts have no standing to assert such claims. See State v. Duran, 118 Ariz. 239, 244, 575 P.2d 1265, 1270 (App. 1978) (one whose conduct falls squarely within the clearly defined core of a statute may not complain that the statute might be vague when applied to others); State v. Steiger, 162 Ariz. at 144, 781 P.2d at 622 (litigant whose conduct falls clearly within a statute's legitimate scope may still have standing to challenge its constitutionality, but only where the statute is alleged to intrude upon first amendment protections).
The principal rule of statutory construction requires the court to interpret and give meaning to legislative intent. State v. Fendler, 127 Ariz. 464, 473, 622 P.2d 23, 32 (App. 1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981). The words used by the legislature will be given their plain and ordinary meaning unless the context requires a different meaning. Id. The United States Supreme Court has long recognized that an otherwise vague or indefinite statute may be saved by requiring proof of a specific intent to do a prohibited act. E.g., Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945). However, when the penalty prescribed is "for an act knowingly done with the purpose of doing that which the statute prohibits," the accused cannot complain that he lacked sufficient warning that his conduct would amount to a violation of the law. Id. at 102, 65 S.Ct. at 1036.
With respect to the statute under consideration, the legislature has enacted several modifications over the past fifteen *128 years. Prior to 1978, A.R.S. section 43-179(f), one of the predecessors to A.R.S. section 42-137(B)(4), provided as follows:
(f) Failure to file or supplying false information intent to evade. Any person who, within the time required by or under the provisions of this title, willfully fails to file any return or to supply any information with intent to evade any tax imposed by this title ... is punishable by imprisonment in the county jail not to exceed one year, or in the state prison not to exceed five years, or by fine of not more than five thousand dollars, or by both such fine and imprisonment, at the discretion of the court.
Act of June 9, 1978, ch. 201, § 783, 1978 Ariz. Sess. Laws 940. (Emphasis added.)
When the 1978 legislature undertook a major revision of the criminal code and several other statutes relating to crimes and offenses, A.R.S. section 43-179(f) was modified and renumbered as follows:
(e) Failure to file or supplying false information intent to evade. Any person who, within the time required by or under the provisions of the title, knowingly fails to file any return or to supply any information with intent to evade any tax imposed by the title ... is guilty of a class 6 felony. (Emphasis added.)
Act of June 9, 1978, ch. 201, § 783, 1978 Ariz. Sess. Laws 940. (Emphasis added.)
One week after the enactment of the above-referenced act, the legislature passed the Arizona Income Tax Act of 1978, which amended several provisions of Title 43. Act of June 17, 1978, ch. 213, § 2, 1978 Ariz. Sess. Laws 1085. However, with regard to A.R.S. section 43-179(e), the Income Tax Act of 1978 did not change the wording of that provision, but only renumbered it as A.R.S. section 43-842. Id. at 1123-24.
The provision under which the Averyts were convicted was enacted in 1985 when the legislature significantly revised the tax code under Titles 42 and 43. 1985 Ariz.Sess.Laws 1462-64. At that time, A.R.S. section 43-842 was repealed and replaced with A.R.S. section 42-137(B)(4) as follows:
B. It is a class 5 felony to:
4. Knowingly fail to file a return or supply required information, or falsify or conceal a material fact, document or record, make a false, fictitious or fraudulent statement or representation or make or use a false writing or document knowing it to contain a false, fictitious or fraudulent statement or entry, with intent that the department rely on the false, fictitious or fraudulent statement or entry in determining tax liability under this article. (Emphasis added.)
Id. at 1488. (Emphasis added.)
Under the rules of statutory construction, when the legislature modifies the language of a statute, there is a presumption that a change in the existing law was intended. See State v. Bridgeforth, 156 Ariz. 60, 63, 750 P.2d 3, 6 (1988) (statutory amendment eliminating phrase "and intentionally" shifted focus of culpable mental state from knowing and intentional to that of knowledge only). When the legislature revised the failure to file provision in 1978, it replaced the culpable mental state of "willfully" with the mental state of "knowingly." See A.R.S. § 43-179(e) (formerly A.R.S. § 43-179(f), later renumbered as A.R.S. § 43-842). In the minutes of the Judiciary Committee meeting on the bill, two of the committee members noted that the changes in mental state from "willfully" to "knowingly" in several of the statutes would simplify prosecution under those statutes. Hearings on H.B. 2025 before the Judiciary Committee, 33d Leg., 2d Reg.Sess. (1978) (committee minutes Jan. 24, 1978).
As part of the 1985 revision, the legislature omitted the requirement of a specific intent to evade any tax imposed by law. In addition, the felony designation was elevated from a class 6 felony to a class 5 felony. See A.R.S. § 42-137(B)(4) (formerly A.R.S. § 43-842). The Averyts and counsel for amicus curiae argue that the legislature's omission of the "intent to evade" was somehow accidental or unintentional, and thus, this court should hold that the scienter requirements under A.R.S. section 42-137(B)(4) remain the same as those of former A.R.S. section 43-842.
*129 To interpret the statute in such a way would exceed our authority because it would require us to reinsert words of limitation which the legislature has expressly omitted. See State v. Steiger, 162 Ariz. at 146, 781 P.2d at 624. By reintroducing a specific intent to evade the payment of a tax, we would be encroaching upon the legislature's power to define the acts that constitute crimes. Id. The statute, as amended, still requires proof of a "knowing" mental state and is therefore not an improper strict liability crime for which the court would have to infer the element of scienter. See State v. Mincey, 115 Ariz. 472, 478, 566 P.2d 273, 279 (1977), rev'd on other grounds, Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (the established rule, with few exceptions, prohibits criminal punishment without wrongful intent); see also State v. Crisp, 175 Ariz. 281, 283, 855 P.2d 795, 797 (App. 1993) (when a criminal statute fails to expressly state a mens rea, this court may infer the scienter requirement from the words of the statute and the intent of the legislature). We conclude that A.R.S. section 42-137(B)(4) is not vague or ambiguous with regard to the mental state required for its violation.
II. Jury Instruction on the Elements of the Offense
The Averyts contend that the trial court erred in limiting the scope of the applicable mental state contained within A.R.S. section 42-137(B)(4) such that the state was required to prove only that the defendants knew they had not filed tax returns by April 15. They further argue that by so limiting the element of intent, the court improperly restricted the available defenses to the crime.
The state contends that Arizona law, unlike federal law, does not require the state to prove that the Averyts knew of their legal duty to file a tax return but only that they knew they had failed to file a particular return. We disagree. We need not rewrite the statute, however, nor attempt to harmonize it with a dissimilar federal provision as the Averyts and amicus curiae have urged us to do.[2]
A fundamental principle of criminal law prohibits conviction for evil thoughts alone. There must be an act or an omission to act before a criminal penalty may be imposed. State v. Dale, 121 Ariz. 433, 434, 590 P.2d 1379, 1380 (1979). In order for an omission to act to be a crime, however, there must exist a duty to act imposed by law. State v. Angelo, 166 Ariz. 24, 27, 800 P.2d 11, 14 (App. 1990). The United States Supreme Court long ago confirmed that notice is ingrained in the notion of due process and is required in situations in which punishment could be imposed for the mere failure to act. Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242-43, 2 L.Ed.2d 228 (1957).
In Lambert, the court confronted a Los Angeles, California ordinance making it unlawful for any convicted felon to remain in the city for more than five days without registering with the police. Id. at 226, 78 S.Ct. at 242. The court held that for such a conviction to comport with due process, the state must prove that the accused had or probably had actual knowledge of the duty to register. Id. at 229, 78 S.Ct. at 243. This court has applied the same Lambert rationale to failure to register as a sex offender, holding that in cases of wholly passive conduct, arising only from a duty imposed by statute, the defendant's knowledge of that statutory duty must be established. State v. Garcia, 156 Ariz. 381, 382, 752 P.2d 34, 35 (App. 1987); cf. State v. Morgan, 167 Ariz. 463, 465, 808 P.2d 348, 350 (App. 1991) (duty to return rental property does not arise only from a statute but arises also from the rental relationship itself, thus the defendant's knowledge of the duty was not an element for the state to prove).
In the present case, both the duty to file state income tax returns and the duty to pay income taxes to the state arise strictly from statute. A.R.S. §§ 43-102(A)(4) and *130 43-301 (Supp. 1993). In the absence of these statutes, earning an income and keeping all of those earnings for one's own use, by themselves, would not normally alert a person to any negative consequences. See Lambert, 355 U.S. at 228, 78 S.Ct. at 243. We hold that a conviction of the crime of failure to file a state income tax return cannot be sustained without proof of the defendant's knowledge of his duty to file such return.
The trial court here instructed the jury on the elements of the offense as follows:
Elements of the crime: On counts I, II and III, the crime of failing to file Arizona personal income tax returns requires proof of the following:
1. A defendant earned at least $5,000 gross income in Arizona for the tax year; and
2. The defendant failed to file an Arizona personal income tax return by April 15th of the year following the tax year; and
3. The failure to file an Arizona personal income tax return was done knowingly.
The State is not required to show that tax is due and owing to prove this offense.
The instruction given was incomplete and hence incorrect because the jury was not told that the element of knowledge applied to both the element of the failure to file and the element of the duty to file. An instruction that omits an element of the offense charged is not "substantially free from error," and cannot be said to have properly reflected the correct law. Cf. State v. Walton, 159 Ariz. 571, 584, 769 P.2d 1017, 1030 (1989), aff'd, Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (defendant suffers no prejudice when instructions, read as a whole, adequately reflect the law and are substantially free from error), quoting State v. Norgard, 103 Ariz. 381, 383, 442 P.2d 544, 546 (1968).
The due process clause protects a defendant against conviction for a criminal offense "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). Without the proper instruction, the prosecutor was relieved of the burden of proving the Averyts' knowledge of their duty to file state tax returns. Such an error cannot be considered harmless, and the convictions must be reversed.
Furthermore, upon a retrial of the case, the Averyts must not be precluded from presenting evidence in support of their defense that their knowledge of the duty to file tax returns was flawed. Preventing the jury from considering evidence which might negate the mens rea of the crime would seriously undermine the protections embodied within the sixth amendment's jury trial provision. See Cheek v. United States, 498 U.S. 192, 203, 111 S.Ct. 604, 611-12, 112 L.Ed.2d 617 (1991) (jury instruction which prevented the jury from considering evidence of defendant's belief that he had no duty to file a tax return because he did not believe that wages were taxable income was error).
It is not beyond the realm of possibility "for a defendant to be ignorant of his duty based on an irrational belief that he has no duty." Id. Because knowledge and belief are questions for the finder of fact, it is error to prevent a defendant from presenting evidence which could raise a reasonable doubt as to an element of the offense. Id. Assessing the credibility of such a belief is for the jury to decide. "The more unreasonable the asserted beliefs ... the more likely the jury will consider them to be nothing more than simple disagreement with known legal duties imposed by the tax laws and will find that the Government has carried its burden of proving knowledge." Id. at 203-04, 111 S.Ct. at 611-12.
CONCLUSION
For the foregoing reasons, the convictions and sentences imposed upon Shirley and Robert Averyt are reversed. The cases are remanded for proceedings consistent with this opinion.
CLABORNE, P.J., and McGREGOR, J., concur.
NOTES
[1] State v. Hannah, 126 Ariz. 575, 617 P.2d 527 (1980).
[2] Internal Revenue Code section 7203 (1988) provides in pertinent part:
"Any person required ... to make a return, keep any records, or supply any information, who willfully fails to ... make such return, keep such records, or supply such information ... shall ... be guilty of a misdemeanor...." (Emphasis added.)
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 08-2257
JAMES A. BARDWELL, APPELLANT ,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
(Decided August 17, 2010)
Robert V. Chisholm, of Providence, Rhode Island, was on the brief for the appellant.
Pamela Nash, with whom Richard Mayerick, Deputy Assistant General Counsel; R.. Randall
Campbell, Assistant General Counsel; and Will A. Gunn, General Counsel, all of Washington, D.C.,
were on the brief for the appellee.
Before HAGEL, LANCE, and DAVIS, Judges.
HAGEL, Judge: James A. Bardwell appeals through counsel a June 16, 2008, Board of
Veterans' Appeals (Board) decision denying entitlement to VA benefits for a bilateral eye disability.
Because VA was not required to provide medical examinations related to Mr. Bardwell's eye
disabilities, the Court will affirm the June 16, 2008, Board decision.
I. FACTS
Mr. Bardwell served on active duty in the U.S. Navy from November 1944 until January 1945.
In March 2001, he submitted a claim for entitlement to VA benefits for in-service injuries to his eyes.
In February 2003, Mr. Bardwell testified at a VA regional office hearing that, while in service,
he went through a training exercise that involved exposure to a chemical gas. He testified that his
eyes were exposed to the chemical and that they started burning. Mr. Bardwell also testified that his
eyesight began to deteriorate after this incident and that by 1978 he was no longer able to work due
to vision problems.
In September 2004, the regional office requested that the National Personnel Records Center
search for any records relating to Mr. Bardwell's exposure to gases or chemicals during his active
duty. The Records Center responded that, after "an extensive and thorough" search, it had been
unable to find any such records and concluded that the records either did not exist or that further
efforts to locate them would be futile. Record (R.) at 247.
In March 2005, Mr. Bardwell submitted a medical opinion from a private ophthalmologist.
The ophthalmologist concluded that Mr. Bardwell was legally blind and displayed nerve dysfunction
that was "consistent with toxic retinopathy."1 R. at 174. The doctor opined that Mr. Bardwell's legal
blindness "appears associated with a gaseous chemical exposure." R. at 174.
In June 2008, the Board issued the decision on appeal, finding that Mr. Bardwell was not
entitled to disability benefits for a bilateral eye disability. The Board acknowledged that Mr. Bardwell
currently had defective vision in both eyes. However, it concluded that "[t]here is neither competent
medical evidence indicating that [Mr. Bardwell's] eyes were harmed in any way during service, nor
any treatment for a vision-related condition." R. at 17. The Board considered Mr. Bardwell's
assertion that he was exposed to chemicals or gases in service and that these chemicals damaged his
eyes. However, the Board determined that these assertions lacked credibility, given the lack of
documentation of the incident in his records and the National Personnel Records Center's inability
to verify the exposure. The Board wrote that it found it "incredible that the veteran would undergo
undocumented chemical or gas testing or other exposure during his less than two-month tour of duty
and his statements to the contrary are not convincing." Id. Accordingly, the Board found that there
was no competent evidence of an in-service injury to Mr. Bardwell's eyes, and therefore found that
the preponderance of the evidence was against a finding that his current eye disability was in any way
related to his military service.
On appeal, Mr. Bardwell argues that VA failed to fulfill its duty to assist in developing his
claim by obtaining a medical examination. Appellant's Brief (Br.) at 7-11.
1
Retinopathy is retinitis, an inflamation of the retina. D ORLAN D 'S I LLU STRATED M ED ICAL D ICTIO N ARY 1658-59
(31st ed. 2007).
2
In response, the Secretary asserts that VA was not obligated to provide a medical examination
because the Board found that Mr. Bardwell's eyes were not injured in service, and this finding was
not arbitrary, capricious, or an abuse of discretion. Secretary's Br. at 4-5.
In his reply brief, Mr. Bardwell argues that the Board failed to give due consideration to the
place, type, and circumstances of his service, pursuant to 38 U.S.C. § 1154(a), when it found that he
did not have an in-service eye injury. Appellant's Reply Br. at 1.
II. ANALYSIS
Pursuant to 38 C.F.R. § 3.159(c)(4)(i) (2010), VA must provide a claimant a medical opinion
or examination
if the information and evidence of record does not contain sufficient competent
medical evidence to decide the claim, but:
(A) Contains competent lay or medical evidence of a current diagnosed
disability or persistent or recurrent symptoms of disability;
(B) Establishes that the veteran suffered an event, injury or disease in service,
or has a disease or symptoms of a disease listed in [38 C.F.R.] § 3.309,
§ 3.313, § 3.316, and § 3.317 manifesting during an applicable presumptive
period provided the claimant has the required service or triggering event to
qualify for that presumption; and
(C) Indicates that the claimed disability or symptoms may be associated with
the established event, injury, or disease in service or with another
service-connected disability.
See also 38 U.S.C. § 5103A(d)(2).
In Duenas v. Principi, the Court held that, when the Board considers whether a medical
examination or opinion is necessary under section 5103A(d) and § 3.159(c)(4), it must provide a
written statement of the reasons or bases for its conclusion, pursuant to 38 U.S.C. § 7104(d)(1), and
that, absent a finding of nonprejudicial error, vacatur and remand is warranted where it fails to do so.
18 Vet.App. 512, 517-18 (2004) (citing Tucker v. West, 11 Vet.App. 369, 374 (1998)).
Additionally, the Court is required to reverse "a finding of material fact . . . if the finding is
clearly erroneous." 38 U.S.C. § 7261(a)(4). "A factual finding 'is "clearly erroneous" when although
3
there is evidence to support it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
Here, Mr. Bardwell argues that VA erred by failing to provide him with a medical examination
pursuant to§ 3.159(c)(4)(i) because he satisfies that regulation's three criteria for an examination. He
asserts that it is not disputed that he has a current eye disability. He asserts that his lay statements
about exposure to gases during training are competent and credible evidence that there was an event
or injury in service relating to his eye. Finally, he asserts that his private ophthalmologist's opinion
is sufficient to indicate that his current disability may be linked to service.
The Court finds Mr. Bardwell's arguments unpersuasive. The Secretary must provide a
medical examination when the information and evidence of record establishes that a claimant suffered
an event, injury, or disease in service. 38 C.F.R. § 3.159(c)(4)(i)(B). The language of the regulation
is clear that the evidence must, in fact, establish that an injury or event occurred in service. The first
prong of § 3.159(c)(f)(i) requires that there be competent evidence of a current disability, while the
third prong requires that there be an indication that the current disability relates to service. By
contrast, the in-service event, injury, or disease prong does not qualify the quality of evidence
necessary to meet its threshold: the evidence must establish that there was a disease, injury, or event
in service. The determination as to whether there was an event, injury, or disease in service is a
finding of fact for the Board that the Court reviews for clear error. See 38 U.S.C. § 7261(a)(4);
McLendon v. Nicholson, 20 Vet.App. 79, 82 (2006).
In this case, the Secretary found that Mr. Bardwell's assertion that he was exposed to a gas or
chemical in service lacked credibility. The Board found that there was no record of such an event in
Mr. Bardwell's records and that it was unlikely that he would have been exposed to chemicals or gases
without such an event being noted in his records. Thus, the Board found that Mr. Bardwell's account
of such exposure was not credible and concluded that the event did not occur. Mr. Bardwell has not
asserted that the Board clearly erred in finding that he was not exposed to gases or chemicals in
service and therefore fails to carry his burden of establishing error. See Hilkert v. West, 12 Vet.App.
145, 151 (1999) (en banc) (holding that appellant has the burden of demonstrating error). Moreover,
the Court finds no clear error in the Board's factual determination that Mr. Bardwell did not suffer an
4
event or injury that harmed his eyes during service. Because the Board did not err in finding that Mr.
Bardwell's eyes did not undergo an event, injury, or disease in service, it was not obligated to consider
whether he was entitled to a medical examination.
Mr. Bardwell asserts that the Board impermissibly rejected his lay evidence contrary to the
U.S. Court of Appeals for the Federal Circuit's (Federal Circuit) holding in Buchanan v. Nicholson,
451 F.3d 1331, 1336 (Fed. Cir. 2006). In Buchanan the Federal Circuit held that the Board could not
reject a veteran's lay evidence about an in-service medical condition solely because that incident was
not reported in the veteran's service medical records. Id.
Mr. Bardwell's situation is distinguishable from Buchanan. In Buchanan, the Federal Circuit
addressed a situation in which a claimant argued that he displayed medical symptoms in service that
were not recorded in his service medical records. The Federal Circuit defined the issue before it as
determining whether this Court had erred by requiring that "lay evidence of medical symptoms be
accompanied by contemporaneous medical records." Id. at 1334. The Federal Circuit held that
although "the lack of contemporaneous medical records may be a fact that the Board can consider and
weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay
evidence not credible." Id. at 1336. Congress has already afforded lay evidence the benefit of a
special presumption conferred on veterans who "engaged in combat with the enemy" in 38 U.S.C.
§ 1154(b). That provision provides that veterans who engaged in combat with the enemy can prove
that a disease or injury was incurred or aggravated in service by lay evidence alone. Here, Mr.
Bardwell invites the Court to hold that a veteran's lay evidence that any event occurred must be
accepted unless affirmative documentary evidence provides otherwise. Congress has indicated that
it did not intend to confer such special status on the lay statements of non-combat veterans. See
38 U.S.C. § 1154(b). Rather, as in all cases, a non-combat veteran's lay statements must be weighed
against other evidence, including the absence of military records supporting the veteran's lay
assertions. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (holding that the Board must analyze
the credibility and probative value of the evidence, account for the evidence that it finds to be
persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence
favorable to the claimant), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Accordingly, we
conclude that the Board did not err by rejecting Mr. Bardwell's lay evidence that he was exposed to
5
gases or chemicals during his less than two-month tour of duty on the basis that such exposure is not
documented in his personnel records. It is for the Board to weigh the evidence before it in the first
instance. Washington v. Nicholson, 19 Vet.App. 362 (2006) (holding that it is the Board's
responsibility to determine the appropriate weight to be given to evidence).
Finally, Mr. Bardwell argues that the Board failed to account for the "places, types, and
circumstances" of his service pursuant to 38 U.S.C. § 1154(a) when it found that his lay evidence
lacked credibility. Contrary to Mr. Bardwell's assertion, however, the Board did consider the
circumstances of Mr. Bardwell's service, but found it "incredible that [he] would undergo
undocumented chemical or gas testing or other exposure during his less than two[-]month tour of
duty." R. at 17. This statement demonstrates that the Board considered his service, but found that
even at the time of his service, training exposure to gases or chemicals would be documented in
personnel records. Accordingly, the Court finds that the Board properly accounted for the place, type,
and circumstances of Mr. Bardwell's service.
III. CONCLUSION
On consideration of the foregoing, the June 16, 2008, Board decision is AFFIRMED.
6
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CANDACE L. FOX, No. 13-56704
Petitioner-Appellant,
D.C. No.
v. 2:04-cv-06933-AG-SS
DEBORAH K. JOHNSON,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued March 5, 2015
Submitted August 1, 2016
Pasadena, California
Filed August 8, 2016
Before: Stephen Reinhardt, N. Randy Smith,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge N.R. Smith;
Concurrence by Judge Hurwitz;
Dissent by Judge Reinhardt
2 FOX V. JOHNSON
SUMMARY*
Habeas Corpus
The panel affirmed the district court’s denial of a
California state prisoner’s habeas corpus petition challenging
her conviction for first-degree murder and first-degree
burglary.
The petitioner pleaded guilty to second-degree murder
and, pursuant to a plea agreement, was sentenced to fifteen
years to life imprisonment. She later successfully petitioned
to withdraw her guilty plea after establishing that the
sentencing court failed to inform her that she would receive
a mandatory term of lifetime parole as a direct consequence
of her plea. At her subsequent trial, she was convicted of
first-degree murder and first-degree burglary and was
sentenced to life imprisonment without the possibility of
parole.
In her federal habeas petition, the petitioner sought
specific performance of an alleged plea agreement in which
the state promised her a term of imprisonment no greater than
seven and one-half years in exchange of her plea. The panel
held that because the petitioner chose in the state habeas
proceedings to seek vacation of her conviction, rather than
specific performance of the purported plea agreement, she
had no due process right to specific performance of the
rescinded agreement.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FOX V. JOHNSON 3
Concurring, Judge Hurwitz wrote that the case was
troubling and that, having had a hand in producing an
outcome that disfavored the one defendant who cooperated
with the prosecution, the state could remedy the situation
either through clemency or by once again offering the
petitioner the chance to plead guilty to second-degree murder.
Dissenting, Judge Reinhardt wrote that the proceeding
was fundamentally unfair, and due process required specific
performance of the plea agreement and vacation of the
petitioner’s unconstitutional sentence of life without the
possibility of parole.
COUNSEL
Michael Parente (argued), Assistant Federal Public Defender;
Sean K. Kennedy, Federal Public Defender; Federal Public
Defender’s Office, Los Angeles, California; for Petitioner-
Appellant.
David Wildman (argued) and Jason Tran, Deputy Attorneys
General; Lance E. Winters, Senior Assistant Attorney
General; Kamala D. Harris, Attorney General; Office of the
Attorney General, Los Angeles, California; for Respondent-
Appellee.
4 FOX V. JOHNSON
OPINION
N.R. SMITH, Circuit Judge:
Candace Lee Fox pleaded guilty to second-degree murder
in 1984 in California Superior Court and, pursuant to a plea
agreement, was sentenced to a term of imprisonment of
fifteen years to life. Approximately five years later, Fox
successfully petitioned to withdraw her guilty plea after
establishing that the sentencing court failed to inform her that
she would receive a mandatory term of lifetime parole as a
direct consequence of her plea. At her subsequent trial, Fox
was convicted of first-degree murder, first-degree burglary,
and the special circumstance that the murder was committed
in the course of a burglary. She was sentenced to life
imprisonment without the possibility of parole. In this
28U.S.C. § 2254 habeas proceeding, Fox now argues that the
State originally promised her a term of imprisonment no
greater than seven and one-half years in exchange for her
plea, and asks for specific performance of that purported
agreement.
We refuse Fox’s request and affirm the district court,
because Fox chose in the state habeas proceedings to seek
vacation of her conviction, rather than specific performance
of the purported plea agreement. She therefore has no due
process right to specific performance of the rescinded
agreement.
FACTUAL BACKGROUND
In June 1984, Fox, Janet Meyer, Scott Peters, and Eddie
Rangel drove to Lewis Levy’s apartment to collect $100 that
Levy allegedly owed Meyer for sexual services. Meyer told
FOX V. JOHNSON 5
the others that Levy had $20,000 to $30,000 in travelers
checks in his apartment. The group forced their way into the
apartment and held Levy at gunpoint while they searched for
cash and travelers checks. After they found Levy’s wallet and
$20,000 in travelers checks, Meyer and Rangel departed to
purchase cocaine, leaving Fox and Peters with Levy.
Levy took this opportunity to run for the door. Peters
struck Levy over the head with the barrel of his revolver until
the handle broke. Peters then attempted to shoot Levy, but his
gun jammed. Fox handed Peters a large steak knife from
Levy’s kitchen. Peters attempted to stab Levy twice, but the
blade bent and did not penetrate. At that point, Levy fell to
the ground nearly unconscious. When Meyer and Rangel
returned with the cocaine, Levy remained semiconscious on
the ground. After Rangel left, Peters explained to Meyer that
Levy had tried to escape.
After Fox, Peters, and Meyer used the cocaine, Meyer
stated that she was not leaving the apartment until Levy was
dead. Meyer took a Swiss Army knife from her pocket and
repeatedly stabbed Levy. Fox struck Levy over the head with
a beer bottle, and Peters attempted to strangle Levy with a
phone cord. Nonetheless, Levy was still alive. Peters then left
the apartment and waited in Fox’s car. Twenty minutes later,
Fox and Meyer left the house with two shopping bags
containing the gun and knives used in the attack. They told
Peters that Levy was dead.
The next day, the group cashed several of Levy’s travelers
checks and purchased drugs. The following morning, Meyer’s
roommate called the police after overhearing an argument
between Meyer and Fox about the murder. The police
questioned Meyer, who disclosed the location of Levy’s
6 FOX V. JOHNSON
body. After further investigation, the police arrested Fox,
Meyer, and Peters.
PROCEDURAL BACKGROUND
A. Fox’s Guilty Plea and Sentence
Fox, Meyer, and Peters were charged with first-degree
murder, first-degree burglary and robbery, and the special
circumstances of (a) murder during the commission of a
robbery and burglary and (b) use of a deadly weapon in the
murder, making them eligible for the death penalty. Fox
agreed to plead guilty to second-degree murder1 in exchange
for testifying against Peters.2
The plea agreement was not reduced to writing. Fox
argues that she was promised she “would be paroled after
serving 7.5 years with good behavior.” The State contends
that Fox was promised she would be sentenced to fifteen
years to life in prison, but would be eligible for parole
consideration after seven and one-half years. Fox’s change of
plea hearing on November 6, 1984, supports the State’s
contention:
PROSECUTOR: By way of sentence
. . . you’re going to receive—as we discussed,
1
When Fox pleaded guilty, second-degree murder in California was
subject to a mandatory minimum of fifteen years to life. Cal. Penal Code
§ 190(a).
2
On November 9, 1984, Fox testified for nearly five hours at Peters’s
preliminary hearing. Peters later pleaded guilty to second-degree murder.
Meyer also pleaded guilty to second-degree murder.
FOX V. JOHNSON 7
you’re going to receive 15 years to life on this
case. Do you understand that?
FOX: Yes.
PROSECUTOR: That is the sentence for
second degree murder. There are no
enhancements. It’s a straight second degree
and you’re going to receive a sentence from
[the court] of 15 years to life.
FOX: Yes.
PROSECUTOR: And do you understand that
it’s up to you how much time you will do. It’s
indeterminate. We can make no promises or
representations on what the Board of Prison
Terms will or will not do or when they will
release you. There is a life-time top. Do you
understand that?
FOX: Yes.
After being so advised, Fox pleaded guilty. The court
accepted her plea as knowing and voluntary. There is thus no
contest that Fox agreed to a sentence of fifteen years to life.
But, Fox was not advised during the plea colloquy that she
also faced a lifetime term of parole when released.
At the sentencing hearing, Fox’s counsel asked for a
continuance to amend the probation report. The court
responded: “I don’t understand exactly what you’re doing
here, Mr. Ficht. She is going to receive a sentence of fifteen
to life, is that correct? Fifteen to life, and that’s going to be
8 FOX V. JOHNSON
her sentence.” In response, Ficht stated that Fox’s probation
report was “the most outrageous document I’ve seen.” The
court told Ficht to “file an amendment. She’s going to be
there for quite awhile. I don’t understand what the difference
is. She should get going. She’s losing time.” Any parole
consideration was only discussed during the following
exchange:
FICHT: Also, if I may, for the record, Your
Honor, I believe the People have indicated as
part of the plea bargain that [Fox would] be
looking at obtaining probation—parole,
excuse me, in seven and a half years. Is that
correct, [prosecutor]?
PROSECUTOR: That’s correct.
TRIAL COURT: All right. Understand that?
Fox now argues that this exchange “modified the plea
agreement” to require that she be paroled after seven and one-
half years in prison. However, neither the parties nor the court
acknowledged any modification of the plea agreement at the
hearing. Following the exchange between Ficht and the
prosecutor, the court sentenced Fox to fifteen years to life in
state prison without any reference to parole eligibility or
release on parole, stating: “All right. Miss Fox, the court has
read and considered the probation report. Probation is denied.
You are sentenced to the state prison for the term prescribed
by law, which in this case is fifteen years to life.” Fox did not
object.
FOX V. JOHNSON 9
B. Post-Conviction Proceedings
On July 1, 1986, Fox filed her first petition for a writ of
habeas corpus in state Superior Court. Rather than seeking
specific performance of the alleged plea agreement, Fox
instead sought to withdraw her plea of guilty on two grounds.
First, Fox alleged that, when she entered her plea, she
“did not understand that her term could exceed seven and
one-half years even if her prison behavior were good.”
Instead, Fox claimed that she believed that she was “entitled
to release after seven and one-half years, provided that she
behaved properly in state prison.” Fox acknowledged that
such a belief was contrary to California law, because a
petitioner “is not entitled to release after serving the
minimum period of incarceration.” Fox also acknowledged
that “no firm promise . . . was given [to her] before her actual
sentencing” as to eligibility for parole in seven and one-half
years. However, Fox maintained (citing the portion of the
sentencing proceedings excerpted above) that the “the parties
understood that if [Fox] was cooperative and fully truthful in
her testimony, she would be eligible for parole after 7 1/2
years . . . and in fact would receive parole if she behaved
herself in state prison.” Fox also argued that, before entering
her plea, she “was not advised of the mandatory post-
incarceration parole term.” Fox asserted that, had “she known
the full consequences of her guilty plea, she would not have
pled guilty.”
Second, Fox asserted that she had received ineffective
assistance of counsel during the plea process and that she was
10 FOX V. JOHNSON
“not in fact guilty of second degree murder.”3 Fox argued that
her previous attorney “erroneously” told her that, if she went
to trial, she could not use a defense of duress; her new
counsel, on the other hand, assured her that she “had a good
defense of duress.” Fox argued that her former attorney failed
to “comprehend and/or advise her of the defenses available”
and that she entered her plea after “rel[ying] upon [such]
erroneous lega1 advice.” The Superior Court denied this first
habeas petition, citing the guilty plea transcript.
On August 26, 1986, Fox filed a second petition in the
Court of Appeal, alleging “that her sentencing was unlawful
and the matter should be remanded for resentencing.” In this
petition, Fox repeatedly insisted that she sought “withdrawal
[of] her plea of guilty,” making the same arguments as those
in her Superior Court petition. On September 4, 1986, the
Court of Appeal denied the petition as not ripe, because Fox
had not yet served seven and one-half years in prison.
On January 24, 1989, after serving just over four and one-
half years in prison, Fox filed a third habeas petition in the
state Superior Court. The arguments echoed those in her
previous petitions. Fox asked to withdraw her guilty plea,
asserting that it was not voluntary and that her counsel was
ineffective. Fox also argued that (1) newly discovered
evidence exonerated her of the murder;4 (2) defense counsel
3
The dissent states that Fox “never seriously denied her guilt.” Dissent
60. However, Fox specifically claimed in her first habeas petition that “she
[was] not in fact guilty of [the] offense and was unaware of [the defense
of duress] at the time she entered her plea.”
4
Fox also alleged that she received letters from Peters, in which he took
full responsibility for the murder.
FOX V. JOHNSON 11
failed to throughly investigate and advise her regarding a
viable duress defense; (3) she was not advised of a mandatory
parole term after incarceration and “would not have entered
a guilty plea if she had known of this lifetime parole”; and
(4) she did not understand that her period of confinement
would exceed seven and one-half years with good prison
behavior. Importantly, this petition again did not seek specific
performance of the alleged plea agreement. On October 13,
1989, the Superior Court granted the habeas petition, setting
aside Fox’s conviction and granting her a new trial on the
basis that she had not been informed before entering the plea
that she faced lifetime parole. The court did not address Fox’s
other arguments.
On November 26, 1990, shortly before the new trial was
to begin, Fox filed a motion seeking, for the first time, to
enforce the previous plea agreement as she understood
it—that is, assuring release after seven and one-half
years—or, in the alternative, preventing the State from
seeking more than a second-degree murder conviction at trial.
The State argued that, because Fox had successfully
withdrawn her plea of guilty, there was no plea agreement to
enforce. The Superior Court denied “specific performance of
the original case settlement.”
Fox was tried on the original charges of first-degree
murder, first-degree burglary, and the special circumstance
that the murder was committed in the course of a burglary.
On January 28, 1992, the jury returned guilty verdicts on all
charges. On May 13, 1992, Fox again requested that the court
order specific performance of her prior plea bargain, arguing
she was entitled to eligibility for parole in seven and one-half
years. On May 29, 1992, the court denied the motion and
12 FOX V. JOHNSON
sentenced Fox to life imprisonment without the possibility of
parole.
Fox appealed, asserting, among other things, that “the
trial court erred in denying appellant’s motions for specific
performance of her plea bargain,” citing Santobello v. New
York, 404 U.S. 257 (1971), for the proposition that specific
performance is a remedy for breach of a plea agreement.5 On
March 30, 1994, the California Court of Appeal affirmed
Fox’s conviction. The court concluded that Fox was not
entitled to specific performance of her plea bargain, stating
that:
5
The dissent states that the State changed its position at this point and
“admitted for the first time that, pursuant to the plea agreement, Fox was
to serve ‘about 7 1/2 years.’” Dissent 36. We disagree with this
characterization of the State’s argument.
From the beginning, the State has maintained that the parties
bargained for a sentence of fifteen years to life for second-degree murder.
The State has conceded that, pursuant to the plea agreement, Fox would
be eligible for parole after seven and one-half years, though the only
evidence in the record of such a promise was the exchange between Fox’s
counsel and the prosecutor at the sentencing hearing. The State has also
argued that, notwithstanding such a promise, the minimum parole
eligibility under California case law for Fox’s sentence was ten years, and
thus a promise of eligibility before that time would have been
unenforceable.
Before the California Court of Appeal, the State argued that the plea
agreement was no longer enforceable because Fox had withdrawn her
plea. The statement in the State’s brief that, “pursuant to the plea
agreement, [Fox] would serve about 7 1/2 years” was not, as the dissent
puts it, evidence that the State had previously lied, but rather a shorthand
version of the plea agreement between the parties. The California Court
of Appeal then based its decision on the State’s statement in its brief.
FOX V. JOHNSON 13
When Fox pled guilty in 1984, she got what
she bargained for, a sentence of 15 years to
life, with a promise of parole in seven and
one-half years. Five years into her sentence
(with only two and one-half years to go), Fox
decided she didn’t like the deal she’d made,
petitioned for a writ of habeas corpus and
succeeded in having her plea set aside, on the
ground she had not been fully advised of the
consequences of her guilty plea (her
alternative ground of duress was rejected).
She clearly felt very strongly that the
obligation of a lifetime on parole was not
something she could accept . . . . She got
exactly what she asked for—her plea was set
aside and the People were required to prove
the charges against her.[6]
6
The Court of Appeal acknowledged “the inevitability of a habeas
petition attacking the competency of the attorney who filed the petition to
set aside Fox’s guilty plea.” However, it noted that such a claim would
necessarily require “an evidentiary hearing to determine what Fox’s
attorneys told her at the time the decision was made to attack the guilty
plea [given that she had already served over four years of her sentence].”
Thus, such a “petition should be addressed to the trial court, not to us.”
The Court of Appeal concluded that Fox received “a sentence of 15
years to life, with a promise of parole in seven and one-half years,” and
thus “got what she bargained for.” However, as Fox acknowledged in her
first habeas petition, she was not entitled to parole after seven and one-half
years under her original sentence. This error is not consequential, because
the Court of Appeal’s ultimate conclusion—that Fox “got exactly what she
asked for” when her habeas petition was granted and the original
conviction set aside—is correct.
14 FOX V. JOHNSON
Fox then filed a petition for review in the California Supreme
Court, which was summarily denied on June 30, 1994.
On April 22, 1997, Fox filed a new habeas petition in the
Superior Court, which was denied on May 14, 1997. Fox filed
another habeas petition in the Court of Appeal on April 23,
1998. On July 24, 1998, that court remanded for an
evidentiary hearing on whether Fox received ineffective
assistance of counsel in connection with the habeas petition
that resulted in her guilty plea being withdrawn. The Superior
Court “cabined” its inquiry to the question of whether counsel
had advised Fox that, if she successfully withdrew her plea,
she could face a new trial and a longer sentence, including a
potential life sentence without the possibility of parole.
During the two-day hearing, Fox’s habeas counsel, Rowan
Klein, testified that he had advised Fox that, if her habeas
petition were granted, she would go back to square one and
face the possibility of a sentence of life without parole. When
asked if he considered seeking specific enforcement of the
original plea bargain prior to seeking to withdraw the plea,
Klein responded,
I’m sure I did but . . . [the reference to
obtaining parole in seven and a half years
wasn’t] a plea bargain because it’s an attorney
uttering incompetent words at the time of
sentencing. It’s not something that is legally
binding on The Court or the District Attorney,
unfortunately. I mean, you can try and turn it
into that through alliance and whatever, but,
legally, it probably isn’t the strongest
argument. And that’s why I sought relief on
the stronger argument, which was the failure
to advise her of the parole consequences. . . .
FOX V. JOHNSON 15
My assessment was that the comments of
Bruce Ficht [Fox’s counsel at sentencing] are
. . . an indication that he didn’t know what he
was taking about . . . with respect to the
meaning of a 15-to-life sentence. To me, a
plea bargain is when the parties may have a
discussion at the time of the plea, not when an
attorney makes a gratuitous comment at the
time of sentencing.
The Superior Court denied Fox’s petition, finding that she
had been advised prior to the 1989 grant of habeas “of all the
possible ramifications that were legally available,
including—and it may even have been the death penalty—but
certainly the option of life without the possibility of parole;
that she’d go back to square one.”
On February 9, 2001, Fox filed a new habeas petition in
the California Court of Appeal, which was denied without
explanation or citation to authority on August 15, 2001. On
November 24, 2003, Fox filed a habeas petition in the
California Supreme Court, which was denied on July 14,
2004, in an order stating: “Petition for writ of habeas corpus
is DENIED. (See In re Robbins (1998) 18 Cal.4th 770, 780.).”
Fox filed a pro se 28 U.S.C. § 2254 habeas petition in the
district court on August 13, 2004, claiming that the state
courts denied her due process rights by failing to specifically
enforce her 1984 plea agreement. A magistrate judge
ultimately recommended denying the petition, noting that Fox
had “successfully moved to withdraw her guilty plea before
she was eligible for release on parole; therefore, the State
could not have actually breached the parole agreement in the
manner petitioner claims.” The district court adopted the
16 FOX V. JOHNSON
report and recommendation, denied the petition, and issued a
certificate of appealability on the question of the specific
performance of Fox’s 1984 plea agreement. This appeal
timely followed.
STANDARD OF REVIEW
The district court’s denial of a petition for a writ of
habeas corpus is reviewed de novo. Jones v. Taylor, 763 F.3d
1242, 1245 (9th Cir. 2014). “[A] federal district court’s
findings and its adoption of the findings of a federal
magistrate judge are reviewed under the clearly erroneous
standard.” Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir.
1994).
Under the Anti-Terrorism and Effective Death Penalty
Act (“AEDPA”), a federal court may not grant a habeas
petition filed by a person in state custody:
with respect to any claim that was adjudicated
on the merits in state court proceedings unless
the adjudication of the claim (1) resulted in a
decision that was contrary to, or involved an
unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d). However, where “no state court has
adjudicated [the] claim on the merits, and the state has
established no procedural bar to its consideration, the
FOX V. JOHNSON 17
strictures of 28 U.S.C. § 2254(d) do not apply, and our review
is de novo.” Riley v. McDaniel, 786 F.3d 719, 723 (9th Cir.
2015); see also Chaker v. Crogan, 428 F.3d 1215, 1221 (9th
Cir. 2005) (applying de novo standard of review to a claim in
a habeas petition that was not adjudicated on the merits by the
state court); Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir.
2004) (same).
AEDPA applies “to a single state court decision, not to
some amalgamation of multiple state court decisions.” Barker
v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005). “When
more than one state court has adjudicated a claim, we analyze
the last reasoned decision.” Id. at 1091 (citing Ylst v.
Nunnemaker, 501 U.S. 797, 803–04 (1991)). Under Ylst, we
only look through the last state court decision to a prior
decision on the merits if the last decision is unreasoned, that
is, if the decision “does not disclose the reason for the
judgment.” 501 U.S. at 802; see also Castellanos v. Small,
766 F.3d 1137, 1145 (9th Cir. 2014) (“[A] state supreme
court’s summary denial of discretionary review, which
generally does not state a reason for that denial, is not a
‘reasoned’ decision under AEDPA, and we must ‘look
through’ that unexplained decision to the last court to have
provided a ‘reasoned’ decision.”).
The last “reasoned” decision here was the California
Supreme Court’s 2004 order denying Fox’s habeas petition
with a citation to In re Robbins, 18 Cal. 4th 770, 780 (1998).
However, the citation to Robbins indicated that the decision
rested on the untimeliness of Fox’s petition, not on the merits
of her constitutional claims. See Walker v. Martin, 562 U.S.
307, 313 (2011) (“A summary denial citing . . . Robbins
means that the petition is rejected as untimely.”). The State
has now waived the affirmative defense of procedural default
18 FOX V. JOHNSON
that formed the basis of the 2004 California Supreme Court’s
reasoned decision. The last reasoned decision on the merits of
Fox’s current claims is the affirmance of her conviction on
direct appeal by the California Court of Appeal in 1994.
The State urges that we apply AEDPA deference to the
1994 Court of Appeal decision. But, we need not decide that
issue. We may “deny writs of habeas corpus under § 2254 by
engaging in de novo review when it is unclear whether
AEDPA deference applies, because a habeas petitioner will
not be entitled to a writ of habeas corpus if his or her claim is
rejected on de novo review.” Berghuis v. Thompkins,
560 U.S. 370, 390 (2010). We conclude that, even under de
novo review, Fox cannot prevail.
DISCUSSION
Fox claims she has a due process right to specific
performance of her original plea deal, in which she alleges
the State promised to release her from prison after seven and
one-half years. For purposes of our analysis, we assume
(without deciding) that the State promised Fox release after
seven and one-half years and that the State breached that
promise. Nevertheless, Fox is not entitled to specific
performance of her plea agreement, because she voluntarily
chose to withdraw her guilty plea, thereby voiding her plea
agreement. There is thus no plea agreement to enforce. Under
these circumstances, there is no precedent suggesting that Fox
was denied due process by denying her specific performance.
As the Court of Appeal observed, Fox’s successful habeas
petition sought only to withdraw her guilty plea as not
knowing and voluntary, rather than to enforce a plea
agreement. At no point in the habeas proceedings, which
FOX V. JOHNSON 19
culminated in the state court’s order allowing Fox to
withdraw her plea, did Fox seek to enforce the plea
agreement; rather, she sought to set it—and the
accompanying guilty plea—aside. Although Fox argued that
she was serving a longer sentence than she expected, she
advanced that argument solely to show that she was not
advised of the extent of the sentence she would serve if she
pleaded guilty. She simultaneously argued both her actual
innocence and that the plea was invalid because she was
never informed of the possibility of a parole term following
release. The record indicates that Fox sought to withdraw her
plea so that she could assert defenses to the charges against
her. Indeed, Fox’s habeas counsel testified he made a
strategic decision not to seek to enforce the alleged plea
agreement. Fox did not attempt, until the eve of her trial, to
hold the State to the deal she believed it made with her.
Fox’s current petition rests on the theory that a criminal
defendant has a due process right to bind the government to
a plea agreement even after choosing to withdraw the plea
rather than seek specific performance of the plea agreement.
Fox identifies no precedent recognizing that right, nor have
we found any. Indeed, the weight of persuasive precedent
cuts the other way. We have instead explained that “[w]hen
the district court exercises its power under the Federal Rules
to reject a plea agreement or permit a defendant to withdraw
his plea, it is clear by implication that the parties are
consequently released from their obligations under the plea
agreement.” United States v. Partida-Parra, 859 F.2d 629,
634 n.6 (9th Cir. 1988). Moreover, a defendant who “chose
of his own accord to challenge an aspect of the proceedings
against him, . . . [takes] a calculated risk of” having the
original charges reinstated. Taylor v. Kincheloe, 920 F.2d
599, 603–04 (9th Cir. 1990). The Sixth Circuit has come to
20 FOX V. JOHNSON
the same conclusion, holding that when a defendant succeeds
in withdrawing a guilty plea entered pursuant to a plea
agreement, the plea agreement is “nullified” and “the
government [is] no longer bound by its promises therein.”
United States v. Jones, 469 F.3d 563, 566 (6th Cir. 2006). In
the course of discussing prosecutorial vindictiveness, the
Fifth Circuit noted “[we] see no distinction between a
defendant’s refusal to plead guilty and a defendant’s
successful withdrawal of a guilty plea . . . . In both
circumstances the defendant has, in essence, refused the
Government’s offer of a plea and exercised his right to force
the Government to prove its case.” United States v. Saltzman,
537 F.3d 353, 361 (5th Cir. 2008). Fox rescinded her plea
agreement; there was nothing left to enforce.7
Fox urges us to apply state contract law. See United States
v. Barron, 172 F.3d 1153, 1158 (9th Cir. 1999) (en banc)
(“[W]e have frequently analyzed plea bargains on contract
principles.”). However, doing so does not aid her. Under
California law, “[r]escission extinguishes a contract,
rendering it void ab initio, as if it never existed.” DuBeck v.
Cal. Physicians’ Serv., 184 Cal. Rptr. 3d 743, 750 (Ct. App.
2015). By obtaining a writ of habeas corpus nullifying her
plea as not knowing and voluntary, Fox also nullified her plea
agreement. Whatever terms were in that agreement are no
longer operative.8
7
Fox does not claim prosecutorial vindictiveness in this habeas
proceeding.
8
There are limits to the analogy to contract law: “A plea bargain is not
a commercial exchange. . . . On rescission of the agreement, the prisoner
can never be returned to his ‘original position’: he has served time by
reason of his guilty plea and his surrender of basic constitutional rights.”
Barron, 172 F.3d at 1158. In that case, which involved a 28 U.S.C. § 2255
FOX V. JOHNSON 21
In Santobello v. New York, the Supreme Court held that
the remedies for a breach of a plea agreement were either
specific performance of the agreement or rescission of the
entire agreement and withdrawal of the guilty plea, to be
determined by the state court based on what “the
circumstances of [the] case require.” 404 U.S. 257, 263
(1971). Where rescission is unable to repair the harm done by
the government’s breach, and where the defendant has upheld
her end of the bargain, we have held that “specific
performance [is] the only viable remedy.” Brown v. Poole,
337 F.3d 1155, 1161 (9th Cir. 2003). Indeed, we have
mandated specific performance as a remedy even where the
sentence the prosecutor promised to a defendant was not a
sentence allowed for under state law. Buckley v. Terhune,
441 F.3d 688, 699 (9th Cir. 2006) (en banc).
But, here, rather than seek specific performance, Fox
chose to withdraw her guilty plea, voiding the plea
agreement. She sought one of the remedies under Santobello,
and received it.9 Even if she had sought specific performance,
petition, this court sitting en banc refused to require a retrial, that is to
completely void the guilty plea, when one of the counts of conviction later
turned out to be unlawful. Id. at 1161. However, Barron turned on an
interpretation of the scope of the relief available under § 2255. Id. at 1159.
Fox seeks relief under § 2254. Thus, we are called on to determine what
due process requires, not what relief Fox might be afforded were she a
federal prisoner.
9
Our recent decision in Cuero v. Cate, —F.3—, 2016 WL 3563660 (9th
Cir. 2016), is not to the contrary. In Cuero, the defendant had pleaded
guilty pursuant to a written plea agreement. The day before sentencing, the
State moved to amend the complaint in a manner that would substantially
increase the defendant’s sentence. The Superior Court granted the motion
and allowed the defendant to withdraw his guilty plea. The defendant
argued in his subsequent habeas petition that the State had breached the
22 FOX V. JOHNSON
Santobello “leave[s] to the discretion of the state court”
whether the circumstances of the case require specific
performance or an opportunity to withdraw the plea. 404 U.S.
at 263. No binding Supreme Court decision finds a
constitutional violation when a state court chooses the remedy
a petitioner expressly chose or when she maintains her
innocence of the original charges. Nor does any decision of
which we are aware find that a state court abuses its
discretion by declining to enforce a plea agreement which
would impose a term of parole to which the defendant claims
she was never made aware and to which she steadfastly
objects.
Fox now asserts that rescission of the plea agreement
(1) was forced by the State’s breach and (2) she never waived
her right to assert a breach of the plea agreement. We have
found no authority, and Fox cites none, to support her first
plea agreement and sought specific performance. The panel granted the
petition, finding that permitting the defendant to withdraw his guilty plea
was not an adequate remedy and that the Superior Court unreasonably
failed to apply principles of California contract law to the plea agreement.
Unlike the defendant in Cuero, Fox opted not to seek specific
performance in her first habeas petition. Therefore, the Superior Court
here did not fail to reasonably apply the principles of California contract
law when it granted Fox the very remedy she requested.
The dissent disagrees with our characterization of Cuero, stating that
“[h]ere, as in Cuero, the state breached its agreement, and here, as in
Cuero, the breach resulted in the withdrawal of the plea agreement.”
Dissent 59. This is incorrect. Nowhere in Fox’s first habeas petition did
she seek specific performance or argue that the government had breached
the agreement. Instead, from the outset, Fox sought to withdraw her plea,
arguing that “she did not understand” the terms of the agreement and that
her lawyer had provided ineffective assistance. In short, Fox got exactly
what she requested. Cuero did not.
FOX V. JOHNSON 23
contention. In any event, the State did not coerce Fox to seek
to withdraw her plea, rather than seek to enforce the alleged
agreement. Rather, the State steadfastly maintained that Fox
was entitled to no relief at all. At the time Fox sought state
habeas relief, Santobello was the law of the land. Nothing
prevented Fox, acting with the assistance of counsel, from
seeking specific performance. Yet, she chose not to do so; her
counsel, whose effectiveness is not today at issue, testified
that he considered but rejected that option.
Fox maintains that, even after withdrawing her plea, she
had a due process right to assert a breach of the plea
agreement, and this right was never waived. We agree that
Fox had a constitutional right to enforce the plea agreement,
see Doe v. Harris, 640 F.3d 972, 975 (9th Cir. 2011) (en
banc), and that a waiver of a constitutional right must be
knowing and voluntary, see Schell v. Witek, 218 F.3d 1017,
1023 (9th Cir. 2000). But “even constitutional rights can be
waived if not timely asserted.” Hill v. Blind Indus. & Servs.
of Md., 179 F.3d 754, 758 (9th Cir. 1999). If there were a
time for Fox to assert a breach of her plea agreement, it was
before the guilty plea was withdrawn and the agreement was
rescinded.
By the time Fox sought specific performance, the plea
agreement had been rescinded. We confronted similar
circumstances in United States v. Burdeau, 168 F.3d 352 (9th
Cir. 1999). In Burdeau, the defendant entered into a plea
agreement that specified he was to receive a maximum of ten
years’ imprisonment on a robbery count and would have a
gun charge dismissed. Id. at 355. The defendant later
withdrew his plea and asserted a new defense to the charges.
Id. After the district court ruled that the defense was
unavailable, the defendant sought to reinstate his original plea
24 FOX V. JOHNSON
deal. Id. The State refused, and we held that the district court
was not required to reinstate the plea. Id. at 358. Burdeau
stands for the proposition that, once a plea agreement is
rescinded, the State need not reoffer the same terms, and the
trial court is not required to enforce the agreement’s now-
defunct provisions.
We agree with our dissenting colleague that the
circumstances of this case are unfortunate. The others
convicted of the offense for which Fox is serving a life
sentenced received lesser terms, and she kept her promise of
cooperation to the State. Indeed, she would have been better
off had the state court never granted her habeas petition; she
would at least now be eligible for parole. But she chose to
rescind a plea agreement that treated her as well as her co-
defendants, despite her counsel’s advice that this could return
her to ground zero. No Supreme Court authority or other
precedent establishes that the Due Process Clause requires the
enforcement of a plea agreement under these circumstances.
Accordingly, the district court did not err in denying Fox’s
§ 2254 petition.
AFFIRMED.
HURWITZ, Circuit Judge, concurring:
Candace Fox committed a gruesome and senseless crime.
She was ultimately convicted of first-degree murder, and does
not argue in this § 2254 proceeding that she did not receive a
fair trial.
FOX V. JOHNSON 25
Nonetheless, as both Judge Smith and Judge Reinhardt
note, this is a troubling case. Fox originally pleaded guilty to
second-degree murder in exchange for her testimony against
a co-defendant. She held up her end of the bargain, testifying
for five hours in a preliminary hearing. Yet both that co-
defendant and another received lesser sentences than the one
Fox is now serving. Moreover, the record of the plea
bargaining process is, to put it charitably, a mess. At one
point the record suggests that Fox was promised release from
prison after seven and one-half years, and at another reflects
that Fox was clearly advised that her sentence was
indeterminate, and that the parole board would ultimately
decide when she would be released.
But, all this became moot when the superior court granted
Fox’s habeas petition, setting aside her guilty plea and
conviction. That is the remedy she repeatedly sought.
Indeed, her habeas counsel testified that he thought about
seeking specific performance of the purported plea
agreement, but decided against it. That decision was
motivated by the lack of clarity about precisely what the
purported deal was; although we have assumed today that the
State promised Fox release after seven and one-half years
with good behavior, the record does not clearly establish that
the agreement entitled Fox to release, rather than only parole
consideration.
Fox does not today urge that she received ineffective
assistance of counsel in the state habeas proceedings, and the
state courts have found that she did not. Indeed, the record
suggests that, when she sought habeas relief, Fox was
unwilling to accept the original bargain. She claimed that she
never would have pleaded guilty had she known of the
required term of lifetime parole upon release, and asserted
26 FOX V. JOHNSON
actual innocence. The State might well have chosen in the
interests of justice to proceed only with second-degree
murder charges against Fox on retrial. But, as Judge Smith
explains, its decision not to do so was not unconstitutional.
Still, having had a hand in producing an outcome that
disfavored the one defendant who cooperated with the
prosecution, the State could remedy this situation either
through clemency or by once again offering Fox the chance
to plead guilty to second-degree murder. But, we cannot
order such relief; our role in this matter is constrained.1 In a
§ 2254 habeas petition, we are limited to determining whether
the Constitution was violated. Judge Smith clearly explains
why it was not, and I concur in his opinion in full.
REINHARDT, Circuit Judge, dissenting:
Candace Fox’s crime was not a pretty one. Yet, in 1984,
California made her a promise in exchange for her promise of
consideration it badly wanted from her. It promised her that,
if she testified against her co-defendant and pleaded guilty to
second degree murder, she would be paroled, assuming good
behavior, in seven and one-half years. If the State had kept
its word, Fox would have been released from prison over two
decades ago. Instead, because the State brazenly broke its
1
Judge Reinhardt’s dissent is premised on the notion that, although Fox
chose to vacate her plea agreement rather than to specifically enforce it,
the state court violated the Due Process Clause by giving her exactly what
she sought. But neither Cuero v. Cate, — F.3d —, 2016 WL 3563660
(9th Cir. 2016), nor any other case Judge Reinhardt cites so holds. Absent
ineffective assistance, a defendant whose plea agreement is breached is
not limited to the remedy of specific performance; she may seek to vacate
the plea and go to trial. That is the unfortunate choice Fox made here.
FOX V. JOHNSON 27
promise to her and lied about it to the courts, Fox will now
likely spend the rest of her life in prison, unless the governor
commutes her sentence.
Thirty years ago, in 1986, when Fox filed her first habeas
petition, this case should have had a simple resolution. There
would be no petition before us today if the State had simply
assured Fox that she would receive the term of imprisonment
that she and the State had agreed to when she forfeited her
freedom, or if the State courts that heard Fox’s 1986 petitions
had fulfilled their obligation, under Santobello v. New York,
404 U.S. 257 (1971), to determine the appropriate remedy for
the State’s breach of its plea agreement. Instead, the state
prosecutors repeatedly denied promising Fox even the
possibility of a release in seven and one-half years, despite
the clear evidence to the contrary. The state courts for their
part entirely disregarded her petitions, although the state court
of appeal later found that she had been promised the parole to
which she had repeatedly told them she was entitled.
Frustrated with the struggle, Fox sought to withdraw from the
terms of the “agreement” that the State unilaterally imposed
upon her. Instead, although she had already fulfilled her part
of the bargain, the court withdrew her entire plea agreement,
and after serving almost her full seven and one-half year
prison term, Fox found herself involuntarily facing trial
anew—this time on an even more serious charge, one that the
State had promised not to bring.
In the thirty-odd years since Fox first sought to hold the
State to its bargain, she has been failed by many people: the
state prosecutors who abused her trust, the state judges who
failed in their obligation to provide her with an appropriate
remedy for the State’s broken promise, and the attorney who
sought to “withdraw” her plea rather than seek the remedy
28 FOX V. JOHNSON
she had desired from the beginning—specific performance of
her bargain. The majority, while purporting to recognize that
this is an “unfortunate” situation, concludes that it cannot
provide Fox with a remedy due to the procedural posture of
this case. While it comes as no surprise that my colleagues
honestly believe that our habeas jurisprudence’s rigid
adherence to procedural rules demands a result so antithetical
to justice, I cannot in good conscience concur. In my
opinion, due process, at its core, requires that every judicial
proceeding be fundamentally fair, see Lassiter v. Dep’t of
Soc. Servs., 452 U.S. 18, 24–25 (1981)—and what happened
to Candace Fox is not fair, not by any possible conception of
the word. If due process means anything, it means that the
promise that the State made over thirty years ago should be
enforced and Fox’s unconstitutional sentence of life without
the possibility of parole should be vacated. Fox has more
than served her time. I respectfully dissent.
I. BACKGROUND
The story of this case is one of repeated falsehoods by the
state prosecutors and repeated errors by the state courts, each
condemning Fox to untold years in prison in violation of the
State’s original bargain. While the majority opinion
describes the procedural posture of this case at great length in
order to explain why it believes there is nothing it can do for
Fox—or for justice—its cold recitation of the facts does not
adequately capture the injustice that has occurred. Nor can
the majority opinion or any other obfuscate the plain fact that
after Fox carried out her part of the bargain, the State
obdurately and willfully refused to carry out its.
In 1984, Candace Fox struck a plea agreement with
California prosecutors. The agreement was not reduced to
FOX V. JOHNSON 29
writing but its terms were clear. Fox would plead guilty to
second-degree murder and testify against her co-defendant.
In exchange, the State would drop all additional charges
against her. Under this plea, the State promised, she would
be sentenced to 15 years to life, and would be paroled at the
end of seven and one-half years of imprisonment if she
conducted herself properly while incarcerated. Although the
State for many years denied ever making Fox any such
promise, the transcript of her sentencing hearing reveals the
truth, and the state court of appeal ultimately recognized that
it did. As the transcript shows, after the sentencing judge
announced Fox’s sentence of fifteen years to life, defense
counsel objected, and the following exchange occurred:
[Counsel]: [I]f I may, for the record, Your
Honor, I believe the People
have indicated as part of the
plea bargain that [petitioner
would] be looking at obtaining
probation–parole, excuse me,
in seven and a half years [¶] Is
that correct, [prosecutor]?
[Prosecutor]: That’s correct.
[Trial Court]: All right . . . Also, the court
will order a transcript of these
proceedings to be sent with
[petitioner] to the state prison
just in an abundance of
caution.
Fox fulfilled her end of the bargain. She testified at the
preliminary hearing against her co-defendant for over five
30 FOX V. JOHNSON
hours. Subsequently, she pleaded guilty to second-degree
murder and commenced serving her sentence. In the course
of doing so, she learned that the state prosecutor had made a
false promise—a promise the State ultimately asserted that it
could not fulfill. A representative of the parole board
informed Fox that under California law she would not be
eligible for parole until she had spent at least ten years in
prison. Further, she learned that after her release she would
be on parole for the rest of her life. Understandably dismayed
to discover that the State had misrepresented the truth to her,
Fox began her thirty year struggle to hold the State to its
word—as it turned out, a hopeless Sisyphean task.
A. 1986 Habeas Petitions
In 1986, Fox filed her first habeas petition in the Los
Angeles Superior Court seeking to ensure that the State
would fulfill its end of the bargain. In it, she explained that,
at the time she entered her plea, she understood that “she
would be entitled to release after seven and one-half years,
provided that she behaved properly in state prison” because
of statements made by “her counsel and by the deputy district
attorney” at the time of her plea. Further, she explained, she
had never been advised that she would be placed on lifetime
parole after release from prison. The superior court denied
her petition on the same day that it was filed, citing only
“page 4 of the plea transcript.”
Immediately thereafter, Fox filed another habeas petition,
this time with the California Court of Appeal. Once again,
she advised the court that the prosecutor had told her that
“she could not serve more than 7-1/2 years of actual
incarceration unless she failed to ‘behave herself’ in state
prison” and that “until recently, [she] ha[d] been unaware that
FOX V. JOHNSON 31
her sentence entail[ed] a potential life-long period of parole.”
She did not request withdrawal of her plea. Instead, she told
the court that her “sentencing was unlawful,” and that she
wished the matter to be “remanded for resentencing.”
The resolution of these petitions should have been simple.
At the time, Santobello v. New York, 404 U.S. 257 (1971) had
been the law of plea bargains for over a decade. In that case,
the Supreme Court held that plea bargains were entitled to
constitutional protection, and that “when a plea rests in any
significant degree on a promise or agreement of the
prosecutor . . . such promise must be fulfilled.” Id. at 262
(emphasis added); see also Buckley v. Terhune, 441 F.3d 688,
694 (9th Cir. 2006) (en banc) (“Under Santobello v. New
York, 404 U.S. 257, 261–62 (1971), a criminal defendant has
a due process right to enforce the terms of his plea
agreement.”). Further, when the government breaches its
promise, the courts have an independent duty to determine
that the defendant receive what he is “reasonably due.”
Santobello, 404 U.S. at 262. That is to say, it is the
constitutional responsibility of the courts to determine
whether, under the circumstances of the case, the defendant
should receive specific performance of his plea agreement or
be given the opportunity to withdraw his plea. Id. at 264; see
also id. at 267 (Douglas, J. concurring) (“One alternative may
do justice in one case, and the other in a different case.”).
Despite the State’s clear breach of the plea agreement in this
case, however,1 neither the superior court nor the court of
1
Although there has been some debate as to whether Fox was promised
merely consideration for parole in seven and one-half years or entitlement
to parole (assuming good behavior) in seven and one-half years, in either
case the State had breached the agreement by informing her that she
would not even be considered for parole until she had served ten years in
32 FOX V. JOHNSON
appeal ever conducted a Santobello inquiry to determine the
appropriate remedy for the breach of Fox’s plea agreement.
Instead, both summarily dismissed Fox’s petition.2
B. 1989 Habeas Petitions
Three years later, Fox again petitioned the superior court
for a writ of habeas corpus, this time with new counsel. In
contrast to her earlier petition, Fox’s new counsel asked to
have her guilty plea set aside on the ground that there had
been newly discovered evidence exonerating her of the
murder, and that her prior counsel had ineffectively advised
her about a potential duress defense. Shortly thereafter, Fox
replaced her counsel, because the woman had “what appeared
to [Fox] like a nervous breakdown” when she had began
“cracking up and laughing” and “talking to herself” in the
courtroom.
The replacement counsel filed a supplemental brief in
support of Fox’s petition in which Fox asked to have her
prison. Because the state court of appeal found in the course of a later
appeal that the promise was one of entitlement to release in seven and one-
half years, that term is used to describe the promise throughout this
dissent.
2
Although a copy of the state court of appeal’s denial is not on record,
both parties have stipulated that the petition was denied as “unripe”—a
highly questionable proposition considering that Fox had been informed
that her minimum eligible parole date was set for 1994, which would
require her to spend at least ten years in prison before being considered for
parole. This strongly indicates that the State had anticipatorily breached
the plea agreement. Any state law to the contrary would unduly burden
Fox’s attempt to vindicate her constitutional rights, as it would require her
to remain in prison longer than her promised sentence, and continue to
remain in prison, while state courts resolved her claim.
FOX V. JOHNSON 33
guilty plea set aside on two bases. The first ground for relief
was that Fox’s plea was involuntary because she “did not
understand that her period of confinement would exceed
seven and one-half years with good prison behavior.”
Although Fox’s petition termed the plea “involuntary,” the
context of her argument shows that she was actually asserting
that the State was applying a plea agreement to which she had
not agreed and that it had breached its agreement as to the
true plea. The plea was involuntary only to the extent that the
court deemed it to be the agreement that the State claimed it
to be (i.e., no promise of eligibility or entitlement to parole
after seven and one-half years had been made). The plea was
breached, however, if the terms were what Fox asserted they
were and what they actually were: that a promise of
entitlement for parole was part of the plea agreement. As the
excerpt of the sentencing hearing described, and as the
California Court of Appeal later found, under the agreement
that Fox actually entered into, her incarceration could not
exceed seven and one-half years with good behavior; instead,
she would be paroled at that time. See Brown v. Poole,
337 F.3d 1155, 1159–62 (9th Cir. 2003). Thus, the State’s
refusal to even consider Fox for release until she had served
ten years in prison did not render Fox’s plea involuntary, but
rather, constituted a breach of the plea agreement. See
Puckett v. United States, 556 U.S. 129, 137 (2009) (“When
the consideration for a contract fails—that is, when one of the
exchanged promises is not kept—we do not say that the
voluntary bilateral consent to the contract never existed . . .
we say that the contract was broken.”). That Fox sought to
“withdraw” her purportedly “involuntary” plea on this basis
makes it plain that Fox was seeking to “withdraw” only from
the terms of the agreement that the State was attempting to
impose upon her unilaterally, not from the terms of the true
agreement. Moreover, as is explained below, a request to
34 FOX V. JOHNSON
withdraw includes a request to enforce in cases in which a
plea agreement has been breached by the State. See
discussion infra at 53–67. The second ground for relief
alleged in the supplemental petition was that Fox had not
been advised that she faced a potential lifetime period of
parole after her sentence.
A hearing was held in July 1989 at which the prosecutor
denied that Fox had ever been promised that she could be
released on parole in seven and one-half years. Indeed, it was
disclosed at the hearing that Fox had been assigned a
minimum release date in 1994—which would require her to
spend at least ten years in prison before even being
considered for parole, despite the terms of her agreement.
The superior court then granted Fox’s petition on an entirely
different basis, holding that her plea was involuntary because
she had not been advised of the lifetime parole period, and
ordered that Fox’s entire plea be set aside. It did so without
reaching the question of whether the State had breached the
agreement or whether, if a breach occurred, withdrawal or
enforcement would be the appropriate remedy. Indeed, it
announced its decision without ever asking Fox if she had a
preferred remedy for the breach, or attempting to determine
whether her request to “withdraw” her plea after she had
already served a substantial portion of her sentence was
knowingly, intelligently, and voluntarily made. Instead, upon
announcing its decision, it immediately set a trial date.
C. Trial, Sentencing, and Appeal
Twice before trial—once two years before the jury was
empaneled, and another six months before that time—Fox
filed motions asserting that the court should not have
withdrawn her plea because, under Santobello, specific
FOX V. JOHNSON 35
performance was a remedy that the court should have
considered. (In fact, in Fox’s case, it was the only
appropriate remedy.) At the time of her second motion, Fox
had served virtually the entirety of the sentence she had been
promised would be her maximum, assuming good behavior.
In its opposition, the State continued to maintain that Fox was
never promised that she would be entitled to parole in seven
and one-half years, and that under California law it had never
been possible for her even to be eligible for parole in seven
and one-half years. The superior court denied both of Fox’s
motions without comment and in a form order. On January
28, 1992, a jury convicted her of first degree murder and first
degree burglary, charges which the State had previously
dropped pursuant to the terms of the plea agreement that it
breached. At this time, of course, Fox had served the entirety
of the promised seven and one-half year term.
Before sentencing, Fox once again asked that she be given
the benefit of her bargain. As she explained, she had been
promised parole in seven and one-half years in exchange for
her testimony against her co-defendant and her plea of guilty,
but had been denied the benefit of her bargain by the State
after she had complied fully with her promise. The due
process clause, she argued, required that she be given an
appropriate remedy for the breach of the promises made to
her, but, she asserted, she did not receive such a remedy.
Instead, after serving almost the full seven and one-half years,
just months before she was entitled to release, the state court
subjected her to a trial on a more serious charge—a charge on
which the State had promised it would not prosecute her.
That prosecution was in no way just or fair. As she told the
court in her brief, “[e]ven if acquitted she had already done
the time she bargained for in the beginning.” The State, she
argued, got what it bargained for, and should be “estopped”
36 FOX V. JOHNSON
from denying the same to Fox after she had detrimentally
relied on its promises throughout her years in prison. Further,
she contended, since the superior court had already vacated
her plea—she should be allowed to plead to a lesser charge
that would give effect to the original agreement of the parties
in compliance with California law. The court denied her
motion and sentenced her to life imprisonment without the
possibility of parole.
Fox appealed and again argued that under Santobello she
was constitutionally entitled to a remedy for the breach of her
plea agreement, and that “[a]fter she had served in excess of
7 ½ years, it was unjust” for the court to allow her only the
option of withdrawing her plea; in doing so, she contended,
it offered her no remedy; rather it presented her with the
fundamentally unfair choice of either accepting a sentence
that increased the period of incarceration provided for by her
original agreement or going to trial in which case she faced
even far greater punishment if convicted. She argued that
rather than a coerced withdrawal, she should have been given
specific performance as the only appropriate remedy for the
State’s breach of the plea agreement.
In response, the State did not deny its promise to Fox, nor
did it claim—as it had in the past—that its promise to her was
unenforceable under California law. Instead, it admitted for
the first time that, pursuant to the plea agreement, Fox was to
serve “about 7 ½ years,” but asserted that its promise was
now unenforceable because the court had withdrawn Fox’s
plea agreement at her request.
In its unpublished 1994 decision, which the State
contends is the last reasoned decision and thus the decision
FOX V. JOHNSON 37
that we must examine under habeas law,3 the state court of
appeal agreed that Fox had been promised release in seven
and one-half years. It found that Fox “bargained for[] a
sentence of 15 years to life, with a promise of parole in seven
and one-half years.” Then, ignoring the fact that the State
had repeatedly denied ever making this promise and that
Fox’s parole eligibility date had been set well after the
expiration of her seven and one-half year term, the California
Court of Appeal inexplicably found that the only reason Fox
had asked to withdraw her plea was that “she didn’t like the
deal she’d made.”4 It then concluded that she had no right to
the bargained-for sentence limited to seven and one-half years
in prison, even though she had fulfilled her part of the
bargain, because she had voluntarily rescinded the plea
agreement. Fox again appealed, and the California Supreme
Court denied her petition for review without comment.5
3
See, e.g., Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991).
4
Fox, of course, did like the deal she had made. Although the court
determined that she did not like the length of the parole term, her “deal”
said nothing about the length of the term of parole that would follow her
sentence, only that she would be released in the promised seven and one-
half years. Fox had no problem with this deal—her problem was that the
State continuously denied that she could or would be released in
accordance with her deal. See infra pp. 45–49.
5
As this court recently noted in Curiel v. Miller, the California Supreme
Court must rule on a “staggering number of habeas petitions each year,”
and addresses this otherwise insolvable workload problem “by issuing
unelaborated summary denials.” Curiel v. Miller, No. 11-56949, Slip Op.
at 7.
38 FOX V. JOHNSON
D. Post-Trial State Habeas Petitions
Following the denial of her direct appeal, Fox filed yet
another habeas petition in superior court, once again raising
her claim that she was entitled to specific performance of the
original plea agreement. She also asserted that her prior
habeas attorney had provided ineffective assistance of
counsel in seeking to set aside her plea in 1989 rather than
seeking specific performance or resentencing. Her petition
was denied without comment or citation of authority.
Fox again returned to the California Court of Appeal,
which remanded for an evidentiary hearing on the issue
whether Fox received ineffective assistance of counsel by
filing a habeas petition that resulted in her guilty plea being
withdrawn. In that hearing, the superior court limited its
inquiry to the question whether counsel advised Fox about the
risk that she could face a new trial or a longer sentence. It did
not examine whether the attorney should have advised Fox
about her right to specific performance of her original
bargain.
During the two-day hearing, Fox’s former habeas counsel
testified that he had asked to withdraw her plea because he
believed that the District Attorney would offer a second plea
bargain. He further testified that he had declined to seek
specific performance because he did not believe that the
statements made about the promise of parole during Fox’s
sentencing hearing were “legally binding on The Court or the
District Attorney.” Accordingly, he believed that asking for
FOX V. JOHNSON 39
withdrawal on the basis that Fox’s plea was involuntary was
a stronger argument.6
Fox’s testimony revealed that the advice given to her by
her habeas counsel was muddled at best. Specifically, she
explained that, although she knew her 1989 habeas petition
asked to have her plea “withdrawn,” she understood that if
that petition were successful, the court would give her the
seven and one-half year period of incarceration that she had
been promised. She testified that, on the basis of the advice
of her counsel, she believed that the court would “adjust some
kind of plea bargain” so that she could receive the promised
seven and one-half years. Fox explained that she had been
informed that by requesting “withdrawal” of her plea, she
would enable the court to invalidate the terms of the bargain
as the prosecutor wrongfully described them and that the
court would then be able to enforce specific performance of
the true agreement by allowing her to change her plea to that
of a lesser charge, one which, under California law, would
allow her to be paroled upon completion of the promised
seven and one-half years.7 Her testimony, in this respect is,
6
That procedure, of course, could still obtain the same result as specific
performance (a seven and one-half year term followed by parole) if Fox
had been allowed to replead after the plea had been withdrawn. As
described below, this appears to be the result Fox hoped to obtain.
7
Although, as the majority reports, Fox was apparently also told that “if
[she] went to trial” she could get a sentence of life without the possibility
of parole, that statement is of little significance in light of the fact that Fox
testified that she was also informed that, if her petition were successful,
she would not have to take the case to trial and could, at the worst, choose
the option of again pleading to second degree murder. She testified that
she had been told that she “could always plead out to second-degree”
which would come with a fifteen-years-to-life sentence. Indeed, she
testified, her attorney told her that the opportunity to plead out to second-
40 FOX V. JOHNSON
of course, credible because the minimum ten year eligibility
date for parole on which the State insisted was based on a
provision of state law of which the prosecutor was apparently
unaware when he promised her parole after seven and one-
half years. Changing Fox’s plea to a lesser charge would
have enabled the State to comply with its own rules as well as
with the Constitution.
The superior court denied the petition from the bench on
June 2, 1999. Ignoring almost all of the facts set forth above,
it found that Fox’s habeas attorney was not ineffective
because he had advised her that setting aside her plea
agreement could result in a new trial that would expose her to
a sentence longer than the one she was serving, “up to and
including life without the possibility of parole.”
Subsequently, Fox once more moved her way through the
hierarchy of the California courts. The California Court of
Appeal denied her petition without comment, and the
California Supreme Court denied it as untimely.
E. The Federal Petition
After two decades of litigation in the California courts,
Fox finally turned naively to the federal judiciary.
Proceeding pro se, she filed a habeas petition under 28 U.S.C.
§ 2254 on August 13, 2004. The State moved to dismiss the
petition as untimely, but the district court held that Fox was
entitled to equitable tolling based on the misconduct of her
habeas lawyer who had resigned from the practice of law
after masterminding what the California Court of Appeal
degree would “always” be “on the table.” According to Fox, however,
neither the prosecution nor the court ever gave her that opportunity or
otherwise complied with the dictates of Santobello.
FOX V. JOHNSON 41
described (in another case) as a habeas corpus “writ mill,”
designed to “systematically . . . abus[e] the writ process for
his own pecuniary gain.” In re White, 121 Cal. App. 4th
1453, 1458 (2004).8
Originally, in October 2009, a magistrate judge issued a
report and recommendation which concluded that Fox was
8
Richard Dangler, the attorney in question, represented Fox through her
third round of state habeas petitions, those that were filed after her trial.
According to the district court, Dangler was paid $5,000.00 and it was
agreed that he would promptly appeal any denial by the Los Angeles
Superior Court, and then, if those petitions were unsuccessful, promptly
file a federal petition within AEDPA’s one year statute of limitations.
Despite Dangler’s assurances, it took him over 11 months to file a new
petition in the state court of appeal, at which point he filed a petition that
essentially simply copied the petition he had originally filed in the
superior court. Following the court of appeal’s denial, Dangler waited
another 27 months to file a petition in the California Supreme Court, and
again, filed a petition that simply mirrored the one that the court of appeal
rejected. During this time, Fox wrote Dangler numerous letters about the
length of time he was taking to file her petitions, and Dangler repeatedly
assured her that she had nothing to worry about. After Dangler had
resigned from the practice of law, and after the California Supreme Court
denied Fox’s petition as untimely, Dangler sent Fox a letter informing her
that she should file another habeas petition in the California Supreme
Court and that his associate, C. Roman Rector would be willing to
represent her in connection with that petition at no charge, provided that
Rector was retained to file a federal petition for $8,250.00. (Although this
opinion refers to the process of going through the California appellate
system after the completion of proceedings in the superior court as
“appealing” the denial of a petition, the California system consists simply
of filing a new petition with the next level of the judicial system. For
almost all purposes, California treats the post-conviction petitions filed at
the second and third levels as appeals. There is a difference not relevant
here, however, in cases in which the order of filing the petitions is
different, for example filing the first petition in the state supreme court,
which is permissible under California law).
42 FOX V. JOHNSON
entitled to relief on her request for specific performance. The
magistrate judge reasoned that Fox’s agreement with the State
plainly entitled her to be eligible for release on parole after
seven and one-half years. Contrary to the opinion of the
California Court of Appeal, the magistrate judge held that
Fox clearly did not receive the benefit of her bargain. She did
not, as the state court had reasoned, “decide[] she didn’t like
the deal she’d made,” but instead sought relief because the
State informed her that she was not going to receive the
benefit of the deal she had made. Indeed, the magistrate
judge found, the state court of appeal’s decision was contrary
to clearly established Supreme Court law and based on
unreasonable determinations of the facts, and therefore failed
even the highly deferential standard of review established
under both 28 U.S.C § 2254(d)(1) and (d)(2). Further, the
magistrate judge recommended, that since Fox had served
more than five years of her promised seven and one-half year
sentence at the time her plea was withdrawn in October 1989,
the only appropriate remedy was to enforce, not withdraw,
the bargain.
The State filed objections and the magistrate judge
revised his report. In the amended report and
recommendation, issued in March 2012, the magistrate judge
ruled that Fox had not shown that the state court’s decision
was contrary to or an unreasonable application of clearly
established Supreme Court law, and therefore could not
survive the deferential standard of review established under
28 U.S.C. § 2254(d)(1). As explained infra Part II, such a
finding would require that the federal court deny Fox relief
only if she could not overcome the equally deferential
standard set forth in 28 U.S.C. § 2254(d)(2), which governs
unreasonable findings of fact. Inexplicably, however,
although he had previously relied on both 28 U.S.C.
FOX V. JOHNSON 43
§ 2254(d)(1) and (d)(2) in his original report and
recommendation, the magistrate judge did not address
whether Fox met the standard with respect to unreasonable
findings of fact under 28 U.S.C. § 2254(d)(2). The district
court nevertheless adopted the revised report and
recommendation, denied Fox’s petition, and issued a
certificate of appealability. This appeal timely followed.
II. STANDARD OF REVIEW
The majority carefully avoids deciding whether the
strictures of the Anti-terrorism and Effective Death Penalty
Act (“AEDPA”) requiring deference to the state court’s
decision apply here. That Act bars further review of any
claim “adjudicated on the merits” in state court, unless the
State’s decision falls within an exception contained in
28 U.S.C. § 2254(d)(1) or (d)(2). Harrington v. Richter,
562 U.S. 86, 98 (2011). Those exceptions permit a grant of
habeas relief in cases in which the relevant state-court
decision is (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court,” or (2) “based on an unreasonable
determination of the facts in light of the evidence presented
to the State court proceeding.” 28 U.S.C. §§ 2254(d)(1) and
(2).
As the majority correctly states, AEDPA’s limitations
apply “to a single state court decision, not to some
amalgamation of multiple state court decisions,” and when
more than one state court has adjudicated the claim, we
analyze only “the last reasoned decision.” Barker v. Fleming,
423 F.3d 1085, 1091, 1093 (9th Cir. 2005) (citing Ylst,
501 U.S. at 803–04). Thus, when a decision “does not
disclose the reason for the judgment,” we will “look through”
44 FOX V. JOHNSON
it and apply AEDPA deference to a prior decision on the
merits. Ylst, 501 U.S. at 802. If the last reasoned decision
states a procedural reason for the judgment, however, we
ordinarily do not apply AEDPA deference and instead,
review the claim de novo if the petitioner can show cause and
prejudice to overcome the procedural default.
Here, the California Supreme Court’s 2004 denial of
Fox’s petition rested on a procedural ground. The State,
however, believes that we should “look through” that
decision both because it has waived Fox’s procedural default
and because the procedural ground in question was merely a
failure to file a timely petition, a ground that would not
disturb the underlying decision on the merits. It therefore
urges that we instead treat the 1994 court of appeal decision
(which was the last decision to announce the reason for its
judgment prior to the 2004 California Supreme Court’s
denial), as the last reasoned decision in this case. Because
that decision addressed the merits of Fox’s claim, it argues,
we cannot grant relief unless that decision falls within one of
the exceptions set forth in 28 U.S.C. § 2254(d).
I, like the majority, do not believe that we need to resolve
the question of which opinion is the last reasoned decision in
this case, and I, like the majority, apply de novo review to
Fox’s claim. I do so because, even assuming that we must, as
the State urges, “look through” the California Supreme
Court’s timeliness decision and give deference to the 1994
court of appeal’s resolution of Fox’s claim on the merits, that
decision is so unreasonable that it fails even AEDPA’s highly
deferential test, and therefore, de novo review applies. See
Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (holding
that, once the court has found that the state court’s decision
meets one of the exceptions listed in 28 U.S.C. § 2254(d),
FOX V. JOHNSON 45
“we evaluate the claim de novo”). Accordingly, even under
the State’s argument as to the last reasoned decision, de novo
review applies.9
In this case, the California Court of Appeal plainly
misapprehended, and indeed, ignored, material facts, and as
a result based its decision on factual findings that are entirely
unsupported by the record and are for that reason alone
wholly unreasonable. It thus falls within the exception set
forth in Section 2254(d)(2). See Milke v. Ryan, 711 F.3d 998,
1008 (9th Cir. 2013) (“[W]here the state courts plainly
misapprehend or misstate the record in making their findings,
and the misapprehension goes to a material factual issue that
is central to petitioner’s claim, that misapprehension can
fatally undermine the fact-finding process, rendering the
resulting factual finding unreasonable.”) (quoting Taylor v.
Maddox, 366 F.3d 992, 1001 (9th Cir. 2004)). Ironically, in
resolving Fox’s claim adversely, the California Court of
Appeal determined that Fox had been promised “a sentence
of 15 years to life, with a promise of parole in seven and one-
half years,” a critical factual finding that was reasonable and
supported by Fox’s representations as to her plea bargain, by
the transcript of her sentencing hearing, and by the State’s
concession on appeal that under the plea agreement, Fox
9
If the California Supreme Court’s 2004 decision were the last reasoned
decision, of course, Fox would not need to overcome either of the
exceptions listed in 28 U.S.C. § 2254(d) because that decision was not a
decision “on the merits.” The normal course of action in such case is to
allow the petitioner the opportunity to show cause and prejudice for his
procedural default, and then, if such a showing is made, to review the
claim de novo. Here, because the State has waived any argument that
Fox’s relief is procedurally defaulted, Franklin v. Johnson, 290 F.3d 1223,
1230 (9th Cir. 2002), we would proceed directly to the merits and review
the claim de novo.
46 FOX V. JOHNSON
would serve “about 7 ½ years.” The remainder of that court’s
resolution of Fox’s claim, however, is riddled with
unreasonable factual findings. Although it agreed that Fox
had been promised parole in seven and one-half years, it
wrote that Fox “got what she bargained for,” and that she
asked to have her deal set aside only because she “didn’t like
the deal she’d made.” Those findings not only directly
conflict with the court’s immediately preceding finding as to
the contents of Fox’s plea bargain, but could be made only by
ignoring or overlooking substantial portions of the record, the
State’s concession, and all of the evidence of the State’s
breach of its plea agreement.
Contrary to the state court of appeal’s findings, the record
clearly reflected that at the time she filed her 1989 petition,
Fox was not, in fact, going to get what she bargained for. As
described above, in both her 1986 and 1989 petitions, Fox
asserted that she had pleaded guilty after the deputy district
attorney promised that she would be released on parole,
assuming good behavior, after seven and one-half years, and
that only after she was in the midst of serving her sentence
was she informed that she could not even be considered for
release at the bargained-for time. Specifically, she asked to
withdraw her plea only after representatives from the State
informed her that the prosecutor had made a false promise
and that, under California law, she could not receive the
benefit of her bargain. Indeed, as her 1989 petition made
clear, she filed her petitions for relief because she was
informed by the State that her “minimum eligible release date
[wa]s almost ten years, contrary to seven and one-half years
as stated by [the] Deputy District Attorney.” In fact, in
responding to Fox’s petitions, the prosecution had taken the
position that Fox could not be considered for parole until she
had spent at least ten years in prison, and that any promise
FOX V. JOHNSON 47
made to the contrary was contrary to California law. The
state court of appeal, however, ignored this and all other
evidence that showed that Fox was not, in fact, “g[etting]
what she bargained for.”
Indeed, the state court of appeal did not even mention that
Fox sought relief in her 1989 habeas petition on the basis that
she was not going to receive parole after seven and one-half
years of incarceration as the State had promised. Instead, it
wrote that there were only two bases for Fox’s 1989 petition
(that she had not been fully advised of the consequences of
her guilty plea, and that she had been ineffectively advised
about her potential duress defense) while ignoring the
primary, most substantial and repeatedly asserted basis for
Fox’s habeas petition (that she was being forced to remain in
prison for at least ten years, in violation of the prosecutor’s
promise regarding parole). Without wholly ignoring this
primary ground and the evidence that supported it, the court
of appeal could not have concluded that “[f]ive years into her
sentence (with only two and one-half years to go), Fox
decided she didn’t like the deal she’d made.” The record
shows exactly the opposite: Fox sought relief not because she
did not like the deal she had made, but because the State
refused to acknowledge the deal into which it had entered and
also contended that it lacked the power to deliver on its part
of the bargain.
The state court of appeal also unreasonably found that
Fox was granted “the relief she so desperately
wanted”—withdrawal of her plea and a trial at which the
State could try to prove the charges against her. Fox’s pre-
trial motions, which were filed well in advance of the actual
trial, make clear that a new trial was not the relief she desired.
She tried vigorously to avoid a new trial and sought
48 FOX V. JOHNSON
reinstatement of all parts of the plea bargain that she insisted
she had made. This was not a case in which the defendant
gambled a life in prison in the hope of being acquitted and
later regretted the outcome. It was one in which the
defendant had, from the very beginning, surrendered her right
to trial in exchange for a promise of parole after serving
seven and one-half years of imprisonment and, for decades
thereafter continuously sought to enforce that promise. The
state court of appeal, however, did not even discuss the
contents of Fox’s pre-trial attempts to secure a remedy
consistent with her original plea bargain.10
Most troubling, the state court of appeal unreasonably
found that Fox’s “predicament”—that is, a lifetime in state
prison without the possibility of parole—was “entirely a
result of her own actions without any fault of the prosecutor
or the court.” Indeed, it stated, the prosecutor “did nothing to
breach the plea agreement.” The record clearly and
affirmatively establishes, however, that Fox’s “predicament”
was, in fact, exclusively the fault of the State. Fox pleaded
guilty on the basis of the prosecutor’s representations that she
would be paroled in seven and one-half years, assuming good
behavior. As it turned out, however, the prosecutor had
misinformed her on that critical point. Whether through
negligence or incompetence, the prosecutor failed to inform
10
Both the majority and the concurrence apparently agree with the state
court of appeal that Fox “got what she asked for” when the state court
withdrew her plea. The facts and extensive procedural history of this case
make clear, however, that Fox had, at all times, sought to receive the
benefit of the bargain she had originally made. See supra at pp. 30–40;
see also infra at pp. 61–64. Further, as explained infra pp. 53–67, because
the State had breached its promise to Fox, the state courts had a duty to
independently determine the appropriate remedy for this breach, which the
courts did not do here.
FOX V. JOHNSON 49
Fox that state law prohibited a release at the promised time.
After she had performed her part of the bargain, Fox learned,
from a representative of the State, that, contrary to the
prosecutor’s promise, she would not be paroled until she had
spent at least ten years in prison. When she tried to explain
her “predicament” to the State and to its judiciary, the
prosecution falsely denied ever making such a promise, and
further denied having the authority to do so. The state court
of appeal ignored all of this critical information when
determining that “her predicament [was] . . . without any fault
of the prosecutor,” and that the prosecutor “did nothing to
breach the plea agreement.”
The evidence that the California Court of Appeal ignored
was vital to Fox’s claim. The entire basis of her appeal was
that she was entitled to specific performance of the State’s
obligations following her performance of her part of the
bargain and that the court had unlawfully withdrawn her plea
after the State’s breach without offering her that option. The
state court of appeal had before it, “yet apparently ignore[d],”
all the evidence that was central to Fox’s claim that the State
had breached the plea agreement. Thus, we do not accord
AEDPA deference to its decision. See Milke, 711 F.3d at
1008–1010. Rather, we must review Fox’s claim de novo.
See Hurles, 752 F.3d at 778 (“If we determine, considering
only the evidence before the state court, that the adjudication
of a claim on the merits . . . was based on an unreasonable
determination of the facts, we evaluate the claim de novo, and
we may consider evidence properly presented for the first
time in federal court.”).11
11
In the alternative, I would also find that the California Court of Appeal
decision was contrary to and an unreasonable application of clearly
established Supreme Court law because it made no mention of, or
50 FOX V. JOHNSON
III. DISCUSSION
The enforcement of promises that are made in exchange
for defendants’ waivers of their freedom is a matter of sound
public policy and profound constitutional importance. Well
over ninety percent of criminal convictions are based on plea
bargains, and each of those convictions depends on public
faith in the integrity of the government’s promises. More
important, defendants surrender their fundamental rights and
liberties in exchange for these promises, and robust
constitutional protections must be in place to ensure that the
entirety of the plea process is just and fair. See, e.g., Missouri
v. Frye, 132 S. Ct. 1399 (2012); Santobello, 404 U.S. 257.
Accordingly, a guilty plea vests the defendant with “a due
process right to enforce the terms of his plea agreement,”
ensuring protections for his sacrifice of fundamental
freedoms and for the integrity of the government’s word. See
Buckley, 441 F.3d at 694 (citing Santobello, 404 U.S. at
261–62); see also Cuero v. Cate, 2016 WL 3563660 (9th Cir.
June 30, 2016); Doe v. Harris, 640 F.3d 972, 975 (9th Cir.
2011) (“Under the Due Process Clause, criminal defendants
have a right to enforce the terms of their plea bargains.”);
Brown, 337 F.3d at 1159 (9th Cir. 2003).
This case, which comes before us after decades of
litigation, started off with a relatively simple premise that
reference to, California contract law in determining whether the State had
breached its promise. See Ricketts v. Adamson, 483 U.S. 1, 5 n.3 (1987);
see also Buckley, 441 F.3d at 695 (“Thus, under Adamson, California
courts are required to construe and interpret plea agreements in accordance
with state contract law.”). In addition, I believe that it was an
unreasonable application of Santobello to fail to analyze whether specific
performance was the more appropriate remedy for the State’s obvious
breach.
FOX V. JOHNSON 51
should have had a relatively simple resolution. In exchange
for Fox’s agreement to waive her fundamental right to a trial
by a jury of her peers and her agreement to testify against her
co-defendant, the State promised her that she would be
paroled, assuming good behavior, in seven and one-half
years. Then, after it received everything it needed from
her—her testimony and her freedom—the State breached its
promise. It informed her that she would not be considered for
parole until she had spent at least ten years in prison, and
indeed, denied ever agreeing to anything different. After this
breach, Fox had an indisputable right to enforce her plea
bargain.
While the majority correctly states that Fox’s counsel did
not expressly request specific performance until after her plea
had already been withdrawn, in her 1986 petition to the
California Court of Appeal, she had contended that her
sentencing was unlawful and had requested that the case be
remanded for resentencing in accordance with her plea.
Further, under Santobello v. New York, state courts have a
duty to determine whether due process requires specific
performance of the broken plea agreement, regardless of
whether the defendant expressly requests only withdrawal.
404 U.S. at 262; id. at 267 (Douglas, J. concurring). In this
case, the state courts did not consider the appropriate remedy
for the State’s breach of the plea, and indeed, did not even
acknowledge the fact that the State breached its agreement.
Instead, the Los Angeles Superior Court withdrew Fox’s plea
agreement and forced her to go to trial after she had already
delivered the consideration required by her plea bargain and
had served the majority of the promised seven and one-half
years. As a result of the court’s rulings and the State’s
continuing misrepresentations, Fox was condemned to pursue
a series of legal actions that resulted in her being where she
52 FOX V. JOHNSON
is today—behind bars for life, in violation of the State’s
promise.
Had the state court fulfilled its obligation to determine the
appropriate remedy for the breach the first time Fox requested
relief, it undoubtedly would have concluded, as has every
court that has faced the question, that under the
circumstances, the only remedy that satisfies the demands of
due process is specific performance of the breached plea
agreement. See, e.g., Cuero, 2016 WL 3563660; Brown,
337 F.3d at 1161. Although, in making the determination of
the proper remedy, “considerable” weight must be given to
the defendant’s specific request, that weight is of no force
unless the court is satisfied that the defendant understands
and has considered the effects of choosing one option rather
than the other. Here, the court never presented Fox with her
options, nor did it assure itself that her waiver of the right to
specific performance was knowing, intelligent, and voluntary.
To the contrary, the record shows that Fox’s request for
“withdrawal” was coerced and that, given the choice, she, like
any other rational person, would have selected specific
performance. Indeed, the transcripts from her 1999
evidentiary hearing show that the only reason she sought to
“withdraw” her plea was so that she could be given the
opportunity to plead to a lesser charge, one that would entitle
her to the promised seven and-one half years without causing
the State to violate California law. In short, she wanted
specific performance all along.
The majority apparently believes that, simply because
Fox’s plea was withdrawn—by unconstitutional means or
otherwise—there is nothing we can do to fix this injustice.
That is incorrect. See Cuero, 2016 WL 3563660 (holding that
a defendant may be given the benefit of his original bargain
FOX V. JOHNSON 53
even after the plea has been withdrawn). In my view, the
state courts acted arbitrarily, unreasonably, and contrary to
law by withdrawing Fox’s plea without conducting an
adequate inquiry as to the appropriate remedy for the State’s
breach. Fox was entitled to a meaningful remedy, and as
every court since Santobello has concluded, withdrawal
cannot remedy a breach when a defendant has, like Fox,
already cooperated with the government or served a
substantial portion of her sentence. Because Fox did not
knowingly, intelligently, and voluntarily waive her
constitutional right to that remedy, her 1992
conviction—which was secured over her objections and in
violation of her rights—cannot stand. Specific performance
of the original bargain should now be granted, and Fox, who
has served a sentence exponentially in excess of the seven
and one-half years that she was promised, should be released
immediately.
A. Fox had a Constitutional Right to Enforce the
Terms of her Agreement after the State’s Breach
In Santobello v. New York, the Supreme Court first held
that “when a plea rests in any significant degree on a promise
or agreement . . . such promise must be fulfilled.” 404 U.S.
at 262. There, New York prosecutors struck a deal with a
defendant, and promised that if he pleaded guilty to a lesser-
included offense, the prosecutor would make no
recommendation as to the defendant’s sentence. Id. at 260.
After considerable delay in scheduling his sentencing hearing,
the petitioner sought to withdraw his guilty plea. In turn, a
new prosecutor neglected his predecessor’s promise, and
recommended the maximum sentence allowable. Id. The
Supreme Court held that the defendant was constitutionally
entitled to a remedy for the prosecutorial breach. Id. at 264.
54 FOX V. JOHNSON
It then remanded to the state court to determine “whether the
circumstances of this case” and the “interests of justice”
required specific performance of the promise, in which case
the petitioner would be resentenced, or withdrawal of the
plea, the relief sought by the petitioner. Id. As Justice
Douglas explained in his critical concurrence, “[o]ne
alternative may do justice in one case, and the other in a
different case.” Id. at 267.12
When Fox sought to enforce her bargain, Santobello had
been the governing law with respect to plea bargains for over
a decade. Fox’s habeas petitions made clear that her plea
rested in significant part on the prosecutor’s promise that she
would be entitled to parole in seven and one-half years, but
that she had been expressly advised by prison authorities that
she would not even be considered for parole at the agreed-
upon time. In fact, she had been informed by state authorities
that she could not be made eligible for parole until after ten
years. Thus, it was clear that the State had no intention of
keeping its promise. Indeed, state prosecutors repeatedly
denied ever agreeing to the evident terms of their bargain.
12
Santobello was decided 4–3, with Justice Douglas’s concurrence
serving as the critical fourth vote. (From September 1971 until roughly
one month after Santobello was decided in December 1971, the Supreme
Court functioned with only seven justices. This was not a result of any
Senate obstructionism, however. Rather, in September 1971 Justice Black
resigned, and six days later, Justice Harlan died). The dissenting justices
did not disagree with the Court’s central holding that the constitution
guarantees a remedy for broken plea bargains. Instead, they believed that,
in this case, the defendant needed to be permitted to withdraw his guilty
plea, particularly because, unlike Fox, he had not yet been sentenced for
the crime. Thus, in Santobello, withdrawal would have had minimal, if
any, prejudicial effect on either the defendant or the State.
FOX V. JOHNSON 55
Thus, under Santobello, Fox had a constitutional right to
a meaningful remedy for the State’s breach, and the state
courts had a duty to ensure that Fox received what she was
“reasonably due”—to determine whether, under the
circumstances of this case, the interests of justice required
specific performance of the bargain or withdrawal of her plea.
The state courts declined to do so. There is no indication that,
at any point in the decades-long state proceedings, the state
courts ever considered what remedy would appropriately
rectify the State’s breach or that they ever considered specific
performance. By failing to do so, the State denied Fox the
remedy to which she was constitutionally entitled: specific
performance of her plea agreement.
B. The Only Appropriate Remedy for this Breach was
Specific Performance
Had the State inquired into the appropriate remedy for the
breach of Fox’s plea agreement, it undoubtedly would have
come to the conclusion that the only appropriate remedy in
this case was to grant specific performance. Fox had fulfilled
her end of the bargain. She testified for several hours against
her co-defendant and, by all accounts, comported herself as
a model inmate in the years she spent in prison before filing
her habeas petitions. Unlike the defendant in Santobello who
had not yet been sentenced at the time of the breach, see
404 U.S. at 259–60, Fox had already forfeited her freedom
and spent a substantial amount of time in prison before she
learned of the state’s breach. In these circumstances, as
courts across the country had recognized at the time of Fox’s
petitions, specific performance was the only just and
meaningful remedy. Withdrawal simply would not provide
the return to the status quo that a proper remedy requires
because “[e]radicating the impact of [Fox’s] testimony is
56 FOX V. JOHNSON
impossible,” and giving her the opportunity to replead after
such a long confinement is, at best, “superficial and
unrealistic.” Geisser v. United States, 513 F.2d 862, 871 (5th
Cir. 1975); see also United States v. Finkbeiner, 551 F.2d
180, 184 (7th Cir. 1977) (“Under the circumstances of this
case it would be unjust to simply vacate the guilty plea, which
theoretically would allow the state to reindict [the defendant.]
Since he has already performed his side of the bargain,
fundamental fairness demands that the state be compelled to
adhere to the agreement as well.”) (emphasis added); United
States v. Duff, 551 F.2d 185, 187 (7th Cir. 1977) (“Since
Ferris has substantially begun performing his side of the
bargain, it would not be fair to vacate the plea and require
him to go through the procedure anew.”); Palermo v. Warden,
545 F.2d 286, 296–97 (2d Cir. 1976) (“Remand for
withdrawal of the guilty plea would indeed have been
meaningless[.]”); Krager v. United States, 388 F. Supp. 595,
599 (D. Mass. 1975) (“To vacate [the defendant’s] plea, after
he has already served more than four years, would be an
empty gesture.”); State v. Tourtellotte, 88 Wash. 2d 579, 585
(Wash. 1977) (en banc) (“If we do not enforce the agreement,
the state would be permitted to play fast and loose with an
accused’s constitutional rights to its advantage and his
detriment.”) (internal quotation omitted).
The three decades that followed have only served to
reinforce the notion that when a defendant has already served
a substantial prison term or has already provided the
bargained-for cooperation with the government, specific
performance is the only remedy for the governmental breach.
Indeed, this court held as much in Brown v. Poole, 337 F.3d
1155 (9th Cir. 2003), a case remarkably similar to this one.
There, as here, a petitioner in California custody had been
promised parole eligibility in seven and one-half years
FOX V. JOHNSON 57
despite the fact that state law required her to be in prison for
at least ten years before being considered for parole.
Although the agreement was evident on the face of the state
court transcripts, the State asserted that the prosecutor had no
right to, and in fact did not, promise eligibility for or
entitlement to parole in seven and one-half years. In Brown
we held that the petitioner was “entitled to a remedy” for the
breach of her plea agreement, and that because she “ha[d] met
the terms of the agreed-upon bargain, and paid in a coin the
state cannot refund,” “[r]escission of the contract [wa]s
impossible[.]” Id. at 1161. Accordingly, specific
performance was “the only viable remedy.” Id.; see also
Buckley, 441 F.3d at 699 (holding that, in similar
circumstances, “[r]escission of the plea agreement cannot
repair the harm caused by the state’s breach”).13
Even more recently, in Cuero v. Cate, this court held that
a defendant who has performed his part of the bargain is
entitled to specific performance after a state’s breach even
after he has already withdrawn the bargain. 2016 WL
3563660. There, the defendant pleaded guilty to two felonies
pursuant to an agreement with the state that he would receive
a maximum of 14 years, 4 months in prison and 4 years of
parole. Id. at *1. After he pleaded guilty, the state prosecutor
13
This is also the approach that has been taken by state courts that have
followed Santobello’s mandate and inquired as to whether specific
performance is an appropriate remedy. See, e.g., Shanklin v.
Commonwealth, 730 S.W. 2d 535, 537 (Ky. Ct. App. 1987). This has
been true even where, as here, the plea agreement was originally
erroneously set aside. See Brooks v. Narick, 243 S.E. 2d 841, 843 (W.V.
1978) (“We hold that withdrawal of his guilty plea was a coerced act
caused by the state’s breach of the plea bargain, and Brooks is entitled to
reinstatement of the guilty plea and specific performance of the
agreement.”).
58 FOX V. JOHNSON
moved to amend the criminal complaint to allege additional
prior charges which, if allowed, would result in an
indeterminate 64 years to life under California’s three strikes
law. Id. at *2. This amendment clearly breached the plea
agreement and undoubtedly violated the defendant’s rights,
but the California Superior Court permitted it, and as a result,
Cuero withdrew his guilty plea. Id. As we explained,
allowing Cuero to withdraw his guilty plea “was no remedy
at all” because it did not “‘repair the harm’ caused by the
prosecutor’s breach.” Id. At *7–8. To the contrary, we
explained, the withdrawal “exposed Cuero to the risk of going
to trial and receiving an indeterminate 64 years to life
sentence. This is hardly the ‘remedy’ Cuero would have
elected had he been given a choice.” Id. “Because Cuero had
already performed, ‘fundamental fairness demands that the
state be compelled to adhere to the agreement as well.’” Id.
at *8. Further, we explained, specific performance was
“necessary to maintain the integrity and fairness of the
criminal justice system” because “‘[i]f a defendant cannot
rely upon an agreement made and accepted in open court, the
fairness of the entire criminal justice system would be thrown
into question. No attorney in the state could in good
conscience advise his client to plead guilty and strike a
bargain if that attorney cannot be assured that the prosecution
must keep the bargain.’” Id. at *8 n.14. (quoting State v.
Tourtellotte, 564 P.2d 799, 802 (Wash. 1977) (en banc). In
other words, because withdrawal of the plea bargain had been
coerced by the State’s breach and because withdrawal was an
inadequate remedy for that breach, specific performance of
the withdrawn plea was required.
The majority believes that Cuero is distinguishable
because of the procedural posture of that case, namely, that
Cuero initially argued breach and sought specific
FOX V. JOHNSON 59
performance in state habeas court. That distinction, however,
is without a difference. Here, as in Cuero, the state breached
its agreement, and here, as in Cuero, the breach resulted in
the withdrawal of the plea agreement. In both cases, the
withdrawal “exposed” the defendant to the fundamentally
unfair risk of a potential life sentence. In both cases, the
withdrawal of the plea was meaningless, as it afforded “no
remedy.” See id. at *7. Accordingly, in both cases the proper
result as a matter of law was to enforce the original terms of
the bargain, not to withdraw the plea. In Cuero, however, we
reinstated the defendant’s withdrawn bargain, and here, we do
not. Put simply, the majority’s theory that withdrawal of the
plea “nullifies” the defendant’s ability to specifically enforce
a bargain, even though the withdrawal had been coerced by
the State’s breach, is inconsistent with our holding in Cuero.14
In short, in every case to have addressed the question,
courts have recognized that, when the State breaches its plea
14
Indeed, the difference between the procedural posture in Cuero and
this case is not so great as the majority suggests. Both requested specific
performance only after their plea had already been withdrawn. In Cuero,
the defendant pleaded guilty to the charges in the amended complaint
subsequent to the withdrawal of his original plea, but before he requested
specific performance. See id. at *2 (“[T]he Superior Court allowed Cuero
to withdraw his guilty plea and enter a new plea agreement[.]”); see also
Cuero v. Cate, 2011 WL 7769328, at *2 (S.D. Cal. 2011) (explaining that,
subsequent to the amended complaint “Cuero withdrew his previous guilty
plea, and entered into a negotiated plea to the charges contained in the . . .
amended complaint, admitted two prior felonies contained therein, and a
stipulated 25-years-to-life-sentence.”). Cuero did not request specific
performance until his post-conviction habeas petition before the California
Court of Appeal. See Cuero, 2011 WL 7769328, at *6. In contrast, Fox
first requested specific performance at an even earlier procedural stage:
after the withdrawal of her plea, but before her subsequent conviction at
trial.
60 FOX V. JOHNSON
agreement after the defendant has already substantially
performed his part of the bargain, withdrawal of the plea is no
remedy at all. Accordingly, by failing to give Fox specific
performance of her bargain and instead withdrawing her plea,
the State denied her the constitutional remedy to which she
was entitled.
The majority would apparently distinguish all prior
reported cases on the patently erroneous assumption that Fox
voluntarily decided in 1989 to abandon the plea deal the State
had guaranteed her in order to seek to establish her innocence
in a new trial. It simply defies all logic and reason to believe
that Fox, having bargained for her release on parole following
seven and one-half years of imprisonment, having delivered
the testimony the State demanded in return for her relatively
short period of incarceration, and having served five years of
that seven and one-half year term, would have voluntarily
decided to refuse to serve her remaining two and a half years
in order to undergo a new trial on a more serious charge with
a possible, indeed almost certain, term of life without parole.
This is particularly obvious as she had little if any evidence
of innocence, had never seriously denied her guilt, and the
evidence of that guilt was overwhelming. Under a proper
reading of the record in this case, nothing whatsoever
supports the majority’s counter-factual conclusion or suggests
so unlikely and irrational an intent on Fox’s part. Rather, at
all times her effort was to obtain, by one means or another,
the state-promised limitation of seven and one-half years to
the sentence she was serving and was close to completing.
See supra pp. 39–40; see also infra pp. 61–64.
FOX V. JOHNSON 61
C. The State is not Excused from its Obligation to
Provide A Meaningful Remedy by the Coerced
Withdrawal of Fox’s Guilty Plea
The majority believes that the State’s withdrawal of Fox’s
plea was appropriate because that was the remedy she sought.
There are several problems with this conclusion. First, it is
directly contrary to Santobello, which held that the remedy
must be selected by the state court based on the circumstances
of the case, not dictated solely by the defendant’s request.
Santobello, 404 U.S. at 262–63; id. at 267 (Douglas, J.
concurring). Although a defendant’s request for a specific
remedy is to be given “considerable” weight, that choice is
meaningless where, as here, the court does not know whether
the defendant has been fully advised of the possible options
and where the court has failed to determine the voluntariness
of the defendant’s request. Second, the context of Fox’s
request for withdrawal shows that she did not want to
withdraw the plea to which she had agreed, or to face trial on
the charges to which she had pled, let alone to a more serious
charge on which the State had agreed not to prosecute her.
Rather, she believed that her motion to “withdraw” from the
State’s version of the agreement would allow her to replead
to an offense that would ensure that she would receive the
benefit of her bargain. Third, Fox’s request for “withdrawal”
was coerced by the State’s false representations regarding the
nature of the plea agreement—she would not have filed a
petition at all if not for its repeated false denials of its
promise to her. Finally, as already discussed, specific
performance was the only proper remedy for the State’s
breach under the circumstances of the case. Fox’s request for
a different remedy constituted, at most, an involuntary,
unknowing, and uninformed waiver of her constitutional right
to the only true remedy: specific performance. The “waiver”
62 FOX V. JOHNSON
thus is void, or at the least voidable, and cannot serve as the
basis for denying Fox the constitutional remedy to which she
is entitled.
Under Santobello, courts have an obligation to determine
independently which remedy comports with due process and
fundamental fairness, regardless of the defendant’s initial
request.15 Id. at 262–63; id. at 267 (Douglas, J. concurring).
Indeed, a number of cases since Santobello have recognized
that due process requires specific performance in
circumstances similar to Fox’s: i.e., in cases in which the
defendant initially requested withdrawal of his plea. See, e.g.,
Cuero, 2016 WL 3563660; Duff, 551 F.2d at 186–87; Brooks,
243 S.E. 2d at 843.
Of course, as Justice Douglas’s critical concurrence in
Santobello suggests, a defendant’s choice of relief should
ordinarily be given “considerable” weight in determining
which remedy due process requires, but that choice is without
force unless it was voluntarily, knowingly, and intelligently
15
This requirement serves a practical purpose. That withdrawal of the
plea is, in cases like Fox’s, not a constitutionally valid remedy is now
established. Thus, a defendant who requests withdrawal may, in fact, be
waiving a right to which he is constitutionally entitled. Judges, who
understand the consequences, legal and practical, of particular remedies,
are in the best position to ensure that the defendant understands his
options and constitutional rights before the plea is withdrawn—just as a
judge must ensure that the defendant understands his options and his
constitutional rights before his plea of guilty is accepted in the first place.
In fact, in many cases, the judge may be the only person capable of
ensuring that the defendant understands his options, because many
defendants are not represented by counsel during state collateral
proceedings. Moreover, those who are represented are not afforded
constitutional protection against the incompetence of their counsel. See
Pennsylvania v. Finley, 481 U.S. 551, 554 (1987).
FOX V. JOHNSON 63
made. Here, although Fox asked to “withdraw” the plea, the
context makes clear that she wished to “withdraw” only from
the terms of the agreement that the State sought to
unilaterally enforce against her, not from the plea bargain as
she (correctly) understood it. Her petition stated that she “did
not understand that her period of confinement would exceed
seven and one-half years with good prison behavior.” The
truth was, of course, that her confinement could not, under
the terms of the actual plea agreement, be longer than seven
and one-half years with good behavior. See Brown, 337 F.3d
at 1161. Indeed, the state court of appeal found as much
following the State’s concession on Fox’s direct appeal. It
was only under the State’s fallacious version of the
agreement, which it attempted unilaterally to enforce against
her, that Fox could be imprisoned for longer than seven and
one-half years without parole.
Fox simply had no objective reason to seek to invalidate
the actual plea agreement that promised her parole after the
agreed-upon period, nor is there any reason to believe that she
would have agreed to do so but for the State’s breach of its
promise. At no point prior to withdrawal did the superior
court ask Fox whether she wished to withdraw her plea and
face the possibility of trial or whether she wished to seek
specific enforcement. Further, as she testified at the 1999
hearing, she believed her motion to “withdraw” would
guarantee her the mutually agreed-upon seven and one-half
years by allowing her to receive the opportunity to replead to
a lesser offense—one that would permit compliance with
California sentencing law while still allowing her the
promised limited term of imprisonment. Indeed, shortly after
the court withdrew Fox’s plea, she moved for specific
performance, making clear that she had only sought to
“withdraw” from the plea that the State represented to be the
64 FOX V. JOHNSON
bargain—a plea to which she in fact had never agreed. Thus,
it is impossible to conclude, as the majority so facilely does,
that Fox voluntarily withdrew her plea. Indeed, Fox’s request
to withdraw was coerced by the State’s repudiation of the
bargain. If not for the State’s actions, she in all likelihood
would not have filed the motion to withdraw, and even if she
had, the withdrawal would have been unlawfully coerced or,
to put it differently, unknowing, uninformed, and involuntary.
Finally, the state court cannot be excused from its duty to
consider, and ultimately, grant specific performance as a
remedy simply because another ground existed for
withdrawal separate and apart from the State’s breach
regarding its promise of parole after seven and one-half years.
The court withdrew Fox’s plea without addressing the State’s
breach. It did so on the ground that Fox had not been advised
of a different parole term required by state law to be included
in her sentence: lifetime parole. State law at the time
permitted a defendant who had not been advised of the length
of the parole term following his release from prison to
withdraw his plea. See In re Carabes, 144 Cal. App. 3d 927,
928, 933 (Ct. App. 1983). Carabes did not, however, address
the case in which there has been both a failure to advise the
defendant about a term of the plea agreement and a breach of
the agreement itself; it certainly did not address a case in
which the plea had been breached after the defendant had
already substantially performed his part of the agreement.
Even if Fox could withdraw her plea on the basis of the
failure to advise her of the duration of parole, doing so would
not provide a constitutionally adequate remedy for the breach
of the plea agreement, and would, in effect, allow the State to
breach the agreement with impunity.
FOX V. JOHNSON 65
In my view, the result under the Due Process Clause is
clear: when there has been both a breach of the plea
agreement and some other, non-constitutional violation, (or
even a constitutional one) the state court must consider the
violations together in determining the appropriate remedy, or
at the least it cannot rule on the remedy for the other violation
without also considering the proper remedy for the breach of
the plea agreement. Santobello clearly states that a defendant
must be provided with a remedy for the State’s breach, and
that, in a number of circumstances, withdrawal will not be
proper even when the defendant requests it. 404 U.S. at
262–63; see also id. at 267 (Douglas, J. concurring).
Numerous cases since Santobello have held that when a
defendant has substantially performed his end of the bargain,
withdrawal is no remedy at all. See, e.g., Cuero, 2016 WL
3563660; Brown, 337 F.3d at 1161. It therefore follows that,
when there has been a breach and some other procedural plea
violation, courts must consider whether specific performance
is the appropriate remedy, even if withdrawal would be
appropriate for the procedural violation alone. Any other
result would deny defendants who have performed their part
of the bargain the constitutional remedy for the State’s breach
of the plea agreement to which they are entitled.16 Here, the
16
It may, of course, be the case that a defendant truly wishes to
withdraw his plea, even despite a breach. In such circumstances, a
defendant’s knowing, voluntary, and intelligent waiver of his
constitutional right to specific performance is something that the state
courts should consider when devising an appropriate remedy. See
Buckley, 441 F.3d at 699 n.11 (“[I]n a case in which the state has already
received the benefit of the bargain, the harm caused by its breach is
generally best repaired by specific performance of the plea agreement,
although a defendant may, if he so chooses, elect instead to rescind the
agreement and take his chances from there.”). A court cannot know
whether the defendant has made an appropriate “choice” of withdrawal,
66 FOX V. JOHNSON
state court failed even to consider the State’s breach of the
plea agreement, and disposed of Fox’s claim solely on the
basis of the procedural violation. In doing so, it deprived Fox
of her right to due process of law.
Two years after the state superior court revoked Fox’s
plea agreement, the California Supreme Court cautioned
lower courts against the very sin committed by the superior
court when it withdrew Fox’s plea without addressing the
State’s breach. The court explained that in “any given case,
there may be a violation of both the advisement requirement,
or the plea bargain, or both” and that when both types of error
are present and the defendant has already begun serving his
sentence, the defendant’s agreement should be specifically
enforced, rather than withdrawn because “permitting him to
withdraw his guilty plea cannot restore the status he enjoyed
before sentencing.” People v. Walker, 819 P.2d 861, 864
(Cal. 1991).17 Thus, the California Supreme Court belatedly
recognized, as a matter of state law, what courts across the
country had previously held as a matter of federal
constitutional law: when a defendant has substantially
performed his end of the bargain, or served a substantial
however, if it never informs the defendant of his rights, presents the
defendant with his options, and makes the inquiry necessary to determine
whether the request for withdrawal is voluntary. In this case, Fox’s efforts
to enforce the agreement pre-trial demonstrate clearly her preference for
enforcement over withdrawal of the plea.
17
Walker was subsequently overruled to the extent that it had held that
failure to advise a defendant of restitution where the plea bargain was
silent as to restitution was not a breach of the agreement, but merely a
failure to advise. See People v. Villalobos, 277 P.3d 179, 185 (Cal. 2012)
(in bank). That does not affect the result here, however. In fact, it makes
the constitutional violation even clearer.
FOX V. JOHNSON 67
portion of his sentence, withdrawal of the bargain cannot
provide the constitutional remedy for the State’s breach that
due process requires.
The superior court had two opportunities to remedy its
failure to provide Fox the constitutional remedy to which she
was entitled when, post-Walker, Fox filed her pre-trial
motions explaining that withdrawal was an inadequate
remedy for the breach of her plea. The court failed to take
advantage of those opportunities, and instead, without
discussing whether the earlier withdrawal was appropriate or
constitutional, denied both motions by means of a form order.
The court then had a third opportunity when Fox asked for
the benefit of her original bargain at sentencing, where she
explained that “there is and was no way that allowing her to
withdraw her plea” after so many years in prison “was fair or
just.” The state court again did not correct its prior errors,
and instead, sentenced Fox to life imprisonment without the
possibility of parole. These orders also were arbitrary and
capricious and furthered the State’s deprivation of her right
to a constitutional remedy for the State’s breach of the plea
agreement.18 Moreover, barring commutation of her sentence
by the governor, they sealed Fox’s fate for life.
D. The Appropriate Remedy is Now to Grant Fox the
Relief She Sought Thirty Years Ago
In short, Fox’s plea agreement should never have been
withdrawn by the state court. Doing so was contrary to the
mandate of Santobello, its progeny and due process (as well
18
No prejudice to the court or the State could even arguably have been
used to justify the denial of Fox’s pre-trial (or even post-trial) motions
existed.
68 FOX V. JOHNSON
as to California law). Further, it allowed the State to breach
its agreement with impunity, and instead, forced Fox alone to
bear the burden of the State’s constitutional errors. That
burden is a heavy one. Even though the State originally
agreed that the service of a prison sentence of seven and one-
half years prior to release on parole was sufficient for the
crime to which she pled, Fox will now likely die in prison for
that very same conduct.
The majority believes that its decision is unavoidable
because even if Fox was, at one point, entitled to specific
performance, the time for that remedy has long passed. Once
the state court withdrew her plea bargain (whether voluntarily
or not), the majority argues, there was no longer an agreement
for it to enforce. This decision is in conflict with our recent
decision in Cuero v. Cate, in which we granted specific
performance after a plea had already been withdrawn. Even
absent the existence of Cuero, however, I do not believe that
the fundamental fairness that due process requires can be so
simply disregarded in the guise of adherence to a prior unfair
and unconstitutional judicial action. An injustice cannot
become just merely through the State’s compounding of its
error and the passage of time.
Because the state court withdrew Fox’s plea without
considering the remedy of specific performance and because
withdrawal of her plea was involuntary, Fox was denied the
constitutional remedy required for the State’s breach. Her
subsequent efforts to reinstate and enforce that plea
agreement were also unconstitutionally denied. The resulting
conviction of Fox for a more serious crime on which the State
had promised not to prosecute her cannot stand. Accordingly,
this court should now do what should have been done three
decades ago: enforce the plea agreement upon which Fox and
FOX V. JOHNSON 69
the State mutually agreed. It necessarily follows that we
should vacate the conviction on the charge of first degree
murder.
Fox, who has served over twenty-five years in excess of
the seven and one-half years that she was promised, should be
released forthwith. She has already suffered more than
enough from the State’s violation of her constitutional rights.
I agree that we are incapable of remedying this travesty
entirely, because we cannot give Fox back the extra twenty-
five years she has spent in prison. I do not agree, however,
that we are unable to prevent the further perpetuation of this
inexcusable travesty of justice and become parties to the
unprecedented violation of Fox’s constitutional rights. I
respectfully dissent.
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Dismissed and Memorandum
Opinion filed January 7, 2010.
In The
Fourteenth Court of
Appeals
____________
NO. 14-93-00952-CV
____________
DEBBIE PIN YA CHIN a/k/a DEBBIE PIN YA SIEH, Appellant
V.
KUO KUNG KO, Appellee
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 92-52982
M E M O R
A N D U M O P I N I O N
This is an appeal from a
judgment signed June 11, 1993. On August 30, 1996, this court abated this
appeal because appellant, Debbie Pin Ya Chin a/k/a Debbie Pin Ya Sieh,
petitioned for voluntary bankruptcy in the United States Bankruptcy Court for
the Southern District of Texas, under cause number 96-46141 H1-13. See
Tex. R. App. P. 8.2.
Through the Public Access to Court Electronic Records (PACER)
system, the court has learned that the bankruptcy case was closed on June 19,
1999. The parties failed to advise this court of the bankruptcy court action.
On November 19, 2009, this court issued an order stating that
unless any party to the appeal filed a motion demonstrating good cause to
retain the appeal within twenty days of the date of the order, this appeal
would be dismissed for want of prosecution. See Tex. R. App. P.
42.3(b). No response was filed.
Accordingly, we reinstate the appeal and order it dismissed.
PER
CURIAM
Panel consists of Chief Justice
Hedges and Justices Anderson and Christopher.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-1385
___________________________
Tawana Henderson, as Trustee for the Next-of-Kin of Mark Eric Henderson
lllllllllllllllllllllPlaintiff - Appellant
v.
City of Woodbury; Officer Anthony Ofstead; Officer Natalie Martin; Officer
Stacey Krech, in their individual and official capacities
lllllllllllllllllllllDefendants - Appellees
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: February 14, 2018
Filed: November 28, 2018
____________
Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.*
____________
SMITH, Chief Judge.
On August 31, 2012, Mark Henderson (“Mark”) attended a party at a hotel
room in Woodbury, Minnesota. The gathering turned into a hostage situation, and
*
Chief Judge Smith and Judge Colloton file this opinion pursuant to 8th Cir.
Rule 47E.
Mark was shot multiple times by Woodbury Police Department Officers Stacey
Krech, Natalie Bauer,1 and Anthony Ofstead after he attempted to escape the ordeal.
Mark’s mother, Tawana Henderson (“Tawana”), as trustee for Mark’s next-of-kin,
filed a lawsuit under 42 U.S.C. § 1983 against the City of Woodbury (“City”) and
Officers Krech, Bauer, and Ofstead. The district court concluded that the officers
were entitled to qualified immunity and granted them and the City summary
judgment. Tawana now appeals. We reverse.
I. Background2
Mark Henderson, a 19-year-old black man, was attending a party held in Room
217 of a Red Roof Inn in Woodbury, Minnesota. Without warning, one of the guests,
another young black male named Demetrius Ballinger, pulled a gun. Ballinger robbed
the other guests, including Mark, and held them hostage. One of the young women
at the party called 911 and then hid her phone. Though the caller was unable to speak
with the operator, the operator kept the line open and listened to the audible audio
from the motel room through the phone.
Based on this audio, the 911 operator discerned an apparent confrontation
between someone with a gun and another person with a knife. The person with the
gun (Ballinger) demanded that the person with the knife (Mark) give it up. The
dispatcher alerted police and reported “hear[ing] two males talking about a knife—it
sounds like one possibly took it from the other and he’s trying to get it back” to
1
Natalie Bauer was formerly known as “Natalie Martin” and was sued under
the latter name. However, in keeping with the district court, we refer to her as
“Natalie Bauer.”
2
“We recite the facts in the light most favorable to [Henderson], as the
nonmoving part[y].” O’Brien v. Dep’t of Agric., 532 F.3d 805, 808 (8th Cir. 2008)
(citation omitted).
-2-
police. Henderson v. City of Woodbury, 233 F. Supp. 3d 723, 726 (D. Minn. 2017)
(citation omitted).
Dispatch determined that the call originated from the Red Roof Inn. But,
dispatch was uncertain as to which guest room. Upon arrival, officers tried to find the
room through guest records and by driving around the hotel. When this proved
unsuccessful, the officers began to canvass the building by foot. Walking in the lead
was Officer Krech, followed by Officers Bauer and Ryan Schroeder. Officer Krech
came across Room 217, and through a gap between the window and curtain, she saw
an animated black male in a dark shirt (Ballinger). Officer Krech then approached the
door to see if she could hear anything. Officer Bauer took a position near the window.
Ballinger then approached the window, moved the curtain to the side, and pointed his
gun at Officer Bauer’s head. Officer Bauer yelled “Gun!,” and the officers retreated.
Id. (citation omitted). By this point, Officers Bauer and Krech had drawn their guns.
The officers called for backup and secured the area. They were positioned at
a breezeway area at the top of the stairs to the second floor. Officer Ofstead and
Sergeant Christopher Murray were the first arriving backup officers. Together, the
officers discussed the situation and decided to call a SWAT team.
Suddenly, finding an opportunity to escape, Mark opened the door to Room
217 and ran down the hallway. Ballinger, the hostage taker, fired a shot at Mark. The
officers heard this gunshot, but they did not see who fired it or where it landed.3 Mark
continued running down the hallway toward the breezeway, in the direction of the
officers. He was not armed. According to the officers, they ordered Mark to stop,
relinquish the weapon they believed he possessed, and get on the ground. As Mark
3
The medical evidence indicates that it went through Mark’s left hip and
traveled through his body before becoming lodged in his right arm.
-3-
neared them, Officers Ofstead and Krech, who at this point were positioned closest
to Mark, fired at him but missed.
After hearing the shots, Mark stopped and got facedown in the hallway. Then,
according to the officers, Mark “pushed himself up with his left hand, and his right
hand was obscured beneath his torso.” Id. at 727. The officers contend that Mark
raised up as they ordered him multiple times to show his hands and stay down. They
also allege that he lifted his torso and moved his right arm, which had been obscured.
Interpreting this as threatening, Officers Krech, Bauer, and Ofstead fired a combined
17 rounds, 12 of which struck Mark. He died shortly thereafter.
Tawana brought this § 1983 action against the City and Officers Krech, Bauer,
and Ofstead. The officers were sued in both their individual and official capacities.
The suit alleged that the officers violated Mark’s right under the Fourth Amendment
to be free of excessive force in the course of an arrest and were liable for wrongful
death under Minn. Stat. § 573.02. It also alleged vicarious liability against the City
under Minnesota state law.
Following discovery, the defendants moved for summary judgment. They
argued that the totality of the circumstances, especially Mark’s perceived non-
compliance, created a reasonable belief that Mark posed a serious threat, rendering
their use of deadly force objectively reasonable and entitling them to qualified
immunity. Tawana argued in opposition that there were multiple genuine issues of
material fact that, if resolved in her favor, supported a finding that the officers acted
unreasonably.
Tawana contended that the officers should have known that they were dealing
with a hostage situation, that the difference between Mark’s and Ballinger’s shirt
colors should have made clear that Mark was not the hostage taker, and that the
officers shot Mark without giving him enough time to comply with their potentially
-4-
conflicting orders. Crucially, Tawana also asserted that a statement that Officer Krech
made to the Minnesota Bureau of Crime Apprehension (BCA) shortly after the
incident suggested that the officers had shot Mark despite his compliance.
The BCA had conducted interviews with the officers on the scene the day of
the shooting. Officer Krech stated the following regarding the second, lethal set of
shots:
[Senior Special Agent Drew Evans] DE[:]Okay, when [Mark] goes
down to the ground what happened uh, he, you said he kind a went
down to a prone position or he kind a fell down kind a near where you
were.
[Officer Krech] SK[:] Um-hm.
DE[:] What happened there?
SK[:] He, he stopped.
DE[:] Okay.
SK[:] Told ’em to put his hands out, “Keep your hands out, keep your
hands out, keep your hands out,” which he did and um then he didn’t
move we told him not to move and he didn’t and we kind of we had our
guns drawn on him now and then I think somebody else was, had some
cover until we had him, our weapons were directed at him until we had
sufficient equipment there to pull him to safety.
...
DE[:] Okay, when he went down, were any additional shots fired after
that?
SK[:] I don’t think after he went down um.
-5-
DE[:] Did you fire any additional shots after that?
SK[:] I don’t think so.
Decl. of J. Ashwin Madia in Opp’n to Def’s Mot. for Summ. J., Ex. 60, at 6,
Henderson v. City of Woodbury, No. 0:15-cv-03332-RHK-FLN (D. Minn. Dec. 1,
2016), ECF No. 86-36.
The district court disregarded this statement and instead relied primarily on the
later statements Officers Krech, Bauer, and Ofstead made in their depositions. In their
depositions, the officers uniformly averred that Mark’s failure to comply with their
commands was the cause of the shooting. The court broke the encounter down into
two discrete incidents: (1) the round of shots fired when Mark came running down
the hallway, and (2) the fatal shots fired while he was on the ground. After applying
separate excessive force analyses to each, the district court ruled that the defendants
were entitled to qualified immunity.
Regarding the first shooting, the court stated that the limited information the
officers had made it “reasonable for the officers to perceive Mark as a serious threat.”
Henderson, 233 F. Supp. 3d at 729.
Though the district court expressed more difficulty in determining the propriety
of the second round of shots, it ultimately concluded that it was reasonable, as well.
The court explained:
To be sure, the officers’ second use of force presents a closer call.
The circumstances indicate that, when the officers opened fire a second
time, Mark posed less of a threat—he had been fired upon, he appeared
to comply with officers’ commands to get on the ground, and he faced
an additional, armed officer (Bauer). There is no indication, however,
that the officers had reason to believe their first volley of gunfire had hit
-6-
Mark. There is no evidence he showed signs of injury or called out as
having been struck. In addition, the officers testified that he did not fall
to the ground but went down deliberately, indicating he retained control
of his body and movements. The officers ordered him to “show me your
hands,” “put your arms straight up,” and “stop or I’m going to shoot.”
It is undisputed that he failed to comply with these commands. Instead,
he pushed his chest off of the floor with his left hand and appeared to try
to roll onto his right side with his right hand obscured beneath his torso.
Krech testified that she could not see his right hand, and she was
worried it held a gun. Bauer “remember[ed] thinking he made it this far,
he's going to kill us.” After Mark failed to comply, Krech, Ofste[ad], and
Bauer fired additional rounds until his right hand became visible.
In the Court’s view, this second use of force was reasonable. As
discussed above, the officers reasonably believed that Mark posed a
threat when he exited Room 217. He then failed to comply with
additional commands and moved to the intersection of the balcony and
the breezeway, where he was closer to the officers and had eliminated
the cover the officers previously enjoyed around the corner from Room
217. The officers’ testimony that they could not see Mark’s right hand
beneath his torso stands unrebutted and, as such, the Court perceives no
intervening facts from which the officers should have concluded the
threat had subsided.
Id. at 731–32 (third emphasis added) (citations and footnote omitted).
Finding the use of force reasonable, the court granted summary judgment on
the federal excessive force claim. The court then relied on this conclusion to support
a finding that the defendants were entitled to official immunity on the state-law
claims. Following the entry of judgment, Tawana timely appeals.
II. Discussion
“We review the district court's grant of summary judgment de novo, viewing
the record in the light most favorable to the nonmoving party and drawing all
-7-
reasonable inferences in that party’s favor.” Chambers v. Pennycook, 641 F.3d 898,
904 (8th Cir. 2011) (citation omitted). A movant is entitled to “summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “When a
defendant asserts qualified immunity at the summary judgment stage, the plaintiff
must produce evidence sufficient to create a genuine issue of fact regarding whether
the defendant violated a clearly established right.” Bishop v. Glazier, 723 F.3d 957,
961 (8th Cir. 2013) (citing Chambers, 641 F.3d at 904).
“Qualified immunity shields government officials from liability and the
burdens of litigation in a § 1983 action unless the official’s conduct violates a clearly
established constitutional or statutory right of which a reasonable person would have
known.” LaCross v. City of Duluth, 713 F.3d 1155, 1157 (8th Cir. 2013) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Brown v. City of Golden Valley, 574
F.3d 491, 495 (8th Cir. 2009)). Qualified immunity is inappropriate if “the facts
shown by the plaintiff make out a violation of a constitutional or statutory right, and
. . . that right was clearly established at the time of the defendant’s alleged
misconduct.” Id. at 1158 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
“Apprehension by the use of deadly force is a seizure subject to the
reasonableness requirement of the Fourth Amendment.” Nance v. Sammis, 586 F.3d
604, 610 (8th Cir. 2009) (citation omitted). In determining whether qualified
immunity is appropriate in an excessive force case, the
question . . . is whether a genuine question of material fact exists
regarding whether [the officers’] actions—as defined by the plaintiff’s
version of the events—were objectively reasonable. Our review is de
novo. A shooting is objectively reasonable when the officer has
probable cause to believe that the suspect poses a significant threat of
death or serious physical harm to the officer or others. But the calculus
of reasonableness must embody allowance for the fact that police
-8-
officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation. And we must
remember not to indulge in armchair quarterbacking or exploit the
benefits of hindsight when evaluating police officers’ use of deadly
force.
Ribbey v. Cox, 222 F.3d 1040, 1043 (8th Cir. 2000) (cleaned up).
At oral argument, counsel for the appellant framed this case as presenting more
of a “fundamental [Federal] Rule of [Civil Procedure] 56” issue than of “official
immunity or qualified immunity.” We agree.
By concluding that “[i]t is undisputed that [Mark] failed to comply with [the
officers’] commands,” Henderson, 233 F. Supp. 3d at 731, the district court gave no
weight to Officer Krech’s BCA statement and reached a conclusion that leaves a
crucial material fact unresolved. This question is whether Mark complied with the
officers’ commands before they shot him.
The officers’ deposition testimony and much of their BCA testimony states that
Mark had not fully complied with their commands. They assert that while he was on
the ground, his hands were not visible to them. They believe that their obscured
vision of one his Mark’s hands supported an objectively reasonable belief that he
posed a significant threat of death or serious bodily harm. However, considered in the
light most favorable to the plaintiff, Officer Krech’s BCA statement supports a
contrary finding: that Mark fully and unequivocally surrendered to police, lay still,
and was shot and killed anyway. If true, such action would have violated Mark’s
clearly established constitutional rights. See Nance, 586 F.3d at 611 (“Existing case
law would have made it sufficiently clear to a reasonable officer that a suspect cannot
be apprehended by use of deadly force unless that individual poses a threat of serious
physical harm.”). The resolution of the conflicting testimony between one officer’s
-9-
more or less contemporaneous description and all the officers’ subsequent unified
deposition testimony is best left to a jury. Therefore, the district court erred in
granting qualified immunity.
We have stated that “[d]isputed factual issues and conflicting testimony should
not be resolved by the district court” at the summary judgment stage.” Wealot v.
Brooks, 865 F.3d 1119, 1128 (8th Cir. 2017) (citing Coker v. Ark. State Police, 734
F.3d 838, 843 (8th Cir. 2013) (“Making credibility determinations or weighing
evidence in this manner is improper at the summary judgment stage, and it is not our
function to remove the credibility assessment from the jury.”)) (other citation
omitted). What Officer Krech meant in her BCA statement and the weight it should
be given are matters for a jury to decide. That fact, once determined, will be material
to determining whether the officers’ use of deadly force was reasonable. Therefore,
we reverse the district court’s grant of summary judgment on the § 1983 claim.
The district court’s grant of official immunity for the state-law claims rested
on the court’s conclusion that the officers were entitled to qualified immunity.
Because we reverse on that point, we also reverse the grant of summary judgment on
Tawana’s claims for wrongful death and vicarious liability under Minnesota law. See
Craighead v. Lee, 399 F.3d 954, 963 (8th Cir. 2005).4
4
Minnesota law provides that
the decision to use deadly force is a discretionary decision entitling a
police officer to official immunity absent a willful or malicious wrong.
Official immunity also protects government entities from vicarious
liability for actions that are entitled to immunity. In determining whether
an official committed a willful or malicious wrong, the court considers
whether the official has intentionally committed an act that he had
reason to believe is prohibited. Whether or not an officer acted willfully
or maliciously is usually a question of fact to be resolved by the jury.
The reasoning that led us to affirm the denial of qualified immunity as
-10-
III. Conclusion5
We reverse and remand for further proceedings consistent with this opinion.
______________________________
to plaintiffs’ Section 1983 claims leads us to affirm the denial of official
immunity as to the state-law claims.
Craighead, 399 F.3d at 963 (citations omitted).
5
Tawana filed a motion to supplement the record with an affidavit of one of the
hostages. We deny it as moot.
-11-
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967 F.2d 592
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Mackie BIAS, Defendant-Appellant.
No. 89-10568.
United States Court of Appeals, Ninth Circuit.
Submitted May 11, 1992.*Decided June 22, 1992.
Before FLETCHER, POOLE and T.G. NELSON, Circuit Judges.
1
MEMORANDUM**
2
Mackie Bias pled guilty to one count of manufacturing methamphetamine. On appeal, he claims that the district court erred in determining after a Fed.R.Crim.P. 11 hearing that his plea was voluntary. We affirm.
FACTS
3
Mackie Bias, age 62, was arrested along with his son Jon Mackie Bias, age 27, and Cheryl Harban. Methamphetamines and the equipment for their manufacture were discovered in the Biases' trailer. The three defendants were charged with one count each of manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1), possession of methamphetamine with intent to distribute in violation of the same statute, and use of a firearm in relation to a drug felony in violation of 18 U.S.C. § 924(c)(1). Defendants were represented by separate counsel.
4
The prosecution offered the defendants a plea agreement whereby Mackie Bias would plead guilty to manufacturing methamphetamine, Jon Bias would plead guilty to possession with intent to distribute, and Harban would plead guilty to simple possession, a misdemeanor. Minimum jail terms for the felonies were ten (or twenty1 ) years for Mackie Bias and five years for Jon Bias. The three plea bargains were a "package deal": if any defendant refused his or her bargain, the prosecution would withdraw the others, and all three defendants would face trial. All of the defendants accepted the plea agreements.
5
The Biases entered their pleas at a Rule 11 hearing on August 17, 1989. On September 6, 1989, Mackie Bias substituted counsel; his previous attorney had been indicted for tax violations. The district court asked him whether he wished to change his plea in light of the substitution, but he declined. The Biases were sentenced on November 1, 1989.2
6
On appeal, Mackie Bias contends that his plea was not voluntary, and that the district court erred by not inquiring more fully into his state of mind. Specifically, he claims that he felt pressured to accept the plea in order to obtain a more lenient sentence for his son.
STANDARD OF REVIEW
7
Adequacy of a Rule 11 hearing is a question of law reviewed de novo. United States v. Jaramillo-Suarez, 857 F.2d 1368, 1369 (9th Cir.1988). Voluntariness of a plea is also reviewed de novo. United States v. Turner, 881 F.2d 684, 685 (9th Cir.), cert. denied, 493 U.S. 871 (1989).
DISCUSSION
8
The Ninth Circuit has ruled that package deal plea bargains of the type offered to the Biases are not per se impermissible.
9
[Appellant] argues that package-deal plea bargains impel defendants to coerce codefendants into pleading guilty. Our court and others have recognized this potential problem. But instead of declaring such plea bargains per se impermissible, we enforce a trial judge's duty to ensure that such pleas are voluntary, as required by Fed.R.Crim.P. 11(d). We have also demanded that such pleas be voluntary in the related situation where a plea bargain is offered in exchange for a promise of leniency as to a third person.
10
United States v. Wheat, 813 F.2d 1399, 1405 (9th Cir.1987) (citations omitted) aff'd 486 U.S. 153 (1988). The cases Bias cites are not to the contrary; they do suggest, however, that plea bargains made in order to secure lenient treatment for others must be carefully scrutinized for possible coercion. In re Ibarra, 93 Cal.Rptr. 538, 543 (Cal.1983); United States v. Nuckols, 606 F.2d 566, 569 (5th Cir.1979); Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8 (1977).
11
The question that remains, then, is whether the district court recognized the potential for involuntariness and took steps to insure that Mackie Bias's plea was voluntary. We conclude that it did. Judge Ramirez clearly and carefully advised Mackie Bias of his rights. He took pains to assure that responses from the defendants were on the record; he repeated himself when necessary so that the defendants could understand him. He was aware that the plea agreements were linked. He explained to each defendant their possible sentences and the nature of the rights they were waiving by pleading guilty. He inquired individually whether they were taking any medications and whether they had a "clear mind." He asked whether the defendants were pleading guilty because they were in fact guilty, and not because of threats of force against them or their family. Finally, after Mackie Bias had substituted counsel, the court offered him an opportunity to change his plea. He responded throughout that he understood the proceedings and was voluntarily pleading guilty. Mackie Bias made several comments at the initial hearing that suggested his unhappiness with the package deal plea bargain and with the prospect of serving a lengthy sentence, but at no time did he say that his plea was entered to secure favorable treatment for his son.
12
We conclude that the defendant pled voluntarily and intelligently.
13
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
The uncertainty results from Mackie Bias's earlier conviction of a California drug charge. At the time of this plea agreement, he had not yet been sentenced in state court, and it was unclear whether the prior conviction had "become final" for purposes of 21 U.S.C. § 841(b)(1)(A) (Supp.1991). If it had, the statutory minimum doubled to twenty years
2
Jon Bias reserved the right to appeal the district court's denial of his motion to suppress evidence; the denial was upheld by a panel of this court. United States v. Bias, No. 89-10540 (9th Cir. November 15, 1990)
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61 F.3d 912
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Donald PLATZER, Petitioner-Appellant,v.Janet BARBOUR, Superintendent, Defendant-Appellee.
No. 94-35607.
United States Court of Appeals, Ninth Circuit.
Submitted July 17, 1995.*Decided July 20, 1995.
Before: FLETCHER, KOZINSKI, and THOMPSON, Circuit Judges.
1
MEMORANDUM**
2
Donald Platzer was convicted in Washington state court on May 19, 1989 of two counts of second degree rape of a child, one count of violation of the Uniform Controlled Substances Act, and two counts of furnishing liquor to a minor. He was sentenced to a 54-month prison term. Platzer filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. Sec. 2254, claiming that he received ineffective assistance of counsel at trial and that the trial judge failed to instruct the jury regarding the presumption of innocence. The district court denied his petition.
3
Platzer now appeals that denial and argues that the district court erred by refusing to conduct an evidentiary hearing on his claims. We have jurisdiction pursuant to 28 U.S.C. Sec. 2253, and we affirm.
I.
4
Platzer claims that he received ineffective assistance of counsel because his attorney failed to contact four potentially exculpatory witnesses, two of whom prepared sworn statements after the trial. We review this mixed question of law and fact de novo. Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir. 1994).
5
To prove ineffective assistance of counsel, Platzer must show both that his counsel performed deficiently, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 694-696 (1984); Morris v. California, 966 F.2d 448, 454 (9th Cir.), cert. denied, 113 S. Ct. 96 (1992). We need not address whether Platzer's attorney did perform deficiently, because Platzer failed to demonstrate a reasonable likelihood that this deficiency changed the outcome of the proceeding. Strickland, 466 U.S. at 694. The witness statements Platzer submitted do not raise any new credibility arguments, and do not contradict the evidence presented at trial regarding the occurrence of the alleged sexual acts. Therefore, Platzer's claim of ineffective assistance of counsel fails.
II.
6
Platzer argues that the trial judge neglected to give the jury a presumption of innocence instruction. He relies on the fact that the state court clerk did not recover the original copy of the jury instructions after the jury returned a verdict. The district court found credible the trial judge's sworn statement that his file copy of the jury instructions was an exact duplicate of the instructions that he read to the jury and gave to the parties, as reflected by the court reporter's transcript. We review the district court's factual findings under the clearly erroneous standard. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir. 1991). Platzer has offered no evidence to rebut the trial judge's sworn statement, other than the fact that the original copy of the jury instructions is missing. Therefore, the district court's determination that the presumption of innocence instruction was given was not clearly erroneous. Platzer's contention fails.
III.
7
Finally, Platzer claims that the district court erred by refusing to hold an evidentiary hearing on his claims. We review the district court's decision to deny Platzer's request for an evidentiary hearing for abuse of discretion. Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir. 1991).
8
An evidentiary hearing is required when (1) the petitioner's specific factual allegations, if proven, would establish his prima facie right to relief, and (2) the state court trier of fact has not reliably found the relevant facts. Id. at 1415. A federal district court is not required to grant an evidentiary hearing where the allegations in the petition are "conclusory and wholly devoid of specifics." Bashor v. Risley, 730 F.2d 1228, 1233-34 (9th Cir.) (quoting Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir. 1970)), cert. denied, 469 U.S. 838 (1984). Platzer fails to allege specific facts to establish his prima facie right to relief. He argues only that the original copy of the jury instructions was not recovered, and that his attorney failed to interview potential witnesses whose stories did not contradict the testimony given at trial. The district court did not abuse its discretion by refusing to hold an evidentiary hearing on these claims.
9
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4. Accordingly, we deny Petitioner's request for oral argument
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, :
: ID No. 1508010489
v. : In and For Kent County
:
ABDUL T. WHITE, :
:
Defendant. :
MEMORANDUM OPINION AND ORDER
Submitted: June 2, 2017
Decided: July 20, 2017
Upon the State’s Motion in limine - GRANTED
Jason Cohee, Esquire, and Lindsay Taylor, Esquire, DEPARTMENT OF JUSTICE,
Dover, Delaware, for the State.
Edward Gill, Esquire, LAW OFFICE OF EDWARD C. GILL P.A., and Alexander
Funk, Esquire, CURLEY, DODGE & FUNK, LLC, Dover, Delaware, Attorneys for
Defendant.
Clark, J.
I. Introduction
Before the Court is the State’s Motion in Limine seeking to admit evidence of a
tattoo reading “Duct Tape Bandit” located on the stomach of Defendant Abdul White
(hereinafter “Mr. White”). The State charged Mr. White with Murder First Degree,
Robbery First Degree, and Home Invasion along with various other crimes. Because
the perpetrators used duct tape during the commission of these crimes, the State seeks
to offer evidence of Mr. White’s “Duct Tape Bandit” tattoo at trial in order to establish
identity, intent, and motive. Mr. White seeks to have this evidence excluded (1) as
prohibited character evidence; (2) because the prejudicial effect of the tattoo
substantially outweighs its probative value; and (3) as a violation of his constitutional
rights. For the reasons set forth below, the State’s Motion in Limine is GRANTED.
Assuming the State can lay a proper foundation, the State may offer the tattoo for the
limited purpose of showing identity, intent, and motive. The Court, upon request, will
issue an appropriate limiting instruction, and the State must redact the picture so that
Mr. White’s other tattoos are not visible.
II. Background and Arguments of the Parties
The facts cited herein are those identified in the affidavit of probable cause
accompanying the search warrant and as proffered by the State in its motion and at oral
argument. On August 8, 2015, the police responded to a home invasion in Milford
after three intruders wearing dark clothes and dirt bike style masks entered the home.
The intruders ordered nine people in the house to lay on the floor in the living room
and then held them at gunpoint. One of the intruders secured a tenth person with duct
tape and also held that person at gunpoint in the living room. While two of the intruders
held these people, one of the three intruders kept John Harmon (hereinafter “Mr.
Harmon”) in his bedroom. The intruder duct taped Mr. Harmon to his wheelchair and
2
then fatally shot him in the head. The three men then fled the residence. The police
developed Mr. White as a suspect and arrested him for these offenses.
The State filed a motion in limine seeking to introduce evidence of Mr. White’s
tattoo at trial and evidence of other crimes where Mr. White allegedly committed
previous home invasions and robberies with a similar modus operandi. In seeking to
admit evidence of the prior crimes and the tattoo, the State primarily relied on
Delaware Rule of Evidence 404(b)(hereinafter “Rule 404(b)”). Prior to oral argument,
the State withdrew its request to introduce evidence of other bad acts and now seeks to
introduce only evidence of the tattoo pursuant to Rule 404(b). The State also seeks to
use this evidence to identify Mr. White as a perpetrator involved in the robbery. The
State argues that there will be evidence that the home invasion and robbery involved
the use of duct tape. The State argues that because the person responsible for the home
invasion and robbery used duct tape, Mr. White’s tattoo is highly probative of the
identity of the perpetrator of this crime. Therefore, the State argues that the Court
should permit it to use this as evidence of identity, an exception to the general rule that
character evidence is inadmissible. 1
Mr. White opposes the State’s use of this evidence. He argues that the use of
this evidence demands wild, unfair, and prohibited speculation by the jury as to Mr.
White’s character and prior conduct. Accordingly, Mr. White argues that the Court
must exclude such evidence under Delaware Rule of Evidence 403 (hereinafter “Rule
403”). For this proposition, Mr. White cites State v. Sterling where the Delaware
Superior Court prohibited the State from introducing evidence of the defendant’s
1
Under the Delaware Rules of Evidence, character evidence is inadmissible to show that the
defendant acted in conformity with his character. D.R.E. 404(a). However, the Rules permit evidence
of other crimes, wrongs, or acts to show “motive, opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident.” D.R.E. 404(b).
3
nickname because it called for the jury to draw prejudicial inferences as to the
defendant’s criminal disposition. 2
Mr. White also argues that this evidence is impermissible character evidence that
the State is not offering for a permissible purpose under Delaware Rule of Evidence
404(b). Moreover, Mr. White maintains that the Court cannot admit the tattoo under
404(b) because the Getz factors are not satisfied. 3 Namely, Mr. White argues that the
tattoo is not material to an issue or ultimate fact in dispute; that the tattoo is not “plain,
clear, and conclusive;” that there is no evidence as to timing of the tattoo; and that the
probative value is outweighed by its unfair prejudicial effect under Rule 403.
Additionally, Mr. White seeks to prevent the State from admitting the evidence on
constitutional grounds. He argues that admitting this evidence would violate the Sixth
Amendment’s Confrontation Clause. Finally, Mr. White argued in his written motion
and at oral argument that evidence of his tattoo is inadmissible hearsay.
III. Discussion
After reviewing the parties’ submissions and arguments, the Court finds that the
admissibility of the tattoo is not properly analyzed under Delaware Rule of Evidence
404(b). Instead, because the tattoo constitutes an admission and is therefore non-
hearsay under relevant law and the rules of evidence, the balancing test set forth in
Rule 403 ultimately governs its admissibility. Under this standard, the tattoo’s unfair
prejudicial effect does not substantially outweigh its probative value. Additionally,
since the tattoo is an admission by a party, it does not violate Mr. White’s constitutional
rights.
2
2017 WL 384083, at *3 (Del. Super. Ct. Jan. 26, 2017).
3
The Delaware Supreme Court enumerated guidelines to govern admissibility of character evidence
pursuant to Rule 404(b). Getz v. State, 538 A.2d 726, 734 (Del. 1988).
4
A. Mr. White’s tattoo cannot be characterized as a prior crime, wrong, or act
that falls under Delaware Rule of Evidence 404(b).
The bulk of the parties’ submissions and arguments centered on a Rule 404(b)
analysis. This is most likely because the State’s initial motion included evidence of
prior crimes that Mr. White allegedly committed in a similar fashion to the manner in
which the perpetrators carried out this crime. Had the State brought such evidence
before the Court, it would have properly analyzed those prior crimes under Rule 404(b).
Under such circumstances, it is possible that the Court would have admitted evidence
of his tattoo as evidence of those prior crimes under a Rule 404(b) analysis as well.
However, the State withdrew its motion to introduce such evidence. Standing alone,
the tattoo is not properly considered to be a prior crime, wrong, or act.4
The Court finds support for this conclusion in the Delaware Supreme Court
decision in Watson v. State.5 In the Watson case, the prosecutor sought to introduce
evidence of the defendant’s prior crimes and evidence of his tattoo under Rule 404(b).6
The Delaware Supreme Court analyzed the defendant’s prior crimes under Rule 404(b),
but evaluated the admissible tattoo evidence solely under Rule 403. 7 Similarly here, a
404(b) analysis is inappropriate. The Court must instead examine the tattoo under other
relevant rules of evidence.
4
E.g., People v. Cardenas, 338 P.3d 430, 438 (Colo. App. 2014) (holding that a defendant’s tattoo is
relevant in terms of it being a remark instead of character evidence under Colorado’s Rule of Evidence
404(b)); State v. Mediz, 2014 WL 5391985, *1 n.1 (Ariz. Ct. App. Oct. 22, 2014) (stating that a tattoo
“is not a crime, wrong, or an act” that can be analyzed under Arizona’s Rule of Evidence 404(b)).
5
2015 WL 1279958 (Del. Mar. 19, 2015).
6
Id. at *2.
7
Id. at *3–4.
5
B. The tattoo constitutes an admission by a party opponent.
The defense claims that the tattoo is inadmissible hearsay. The Court disagrees.
While the Court recognizes that the State is clearly offering the tattoo for the truth of
the matter asserted thereby implicating a hearsay analysis,8 the Delaware Rules of
Evidence define this as non-hearsay.9 Accordingly, the Court views Mr. White’s tattoo
as an admission by a party opponent because it constitutes a statement he made himself
or is one that he adopted.
Delaware’s evidence rules provide that a statement made by the defendant either
in his individual or in a representative capacity constitutes a party-admission. 10 The
rules of evidence define a statement as “an oral or written assertion.” 11 Mr. White’s
tattoo clearly fits this definition of a statement because it is a written assertion.
Accordingly, it constitutes an admission if it fits within any of the definitions set forth
in Rule 801(d)(2). Here, either Mr. White tattooed this statement on himself, making
it his own statement, or he allowed or instructed a tattooist, acting as his representative,
to tattoo this statement onto his body. Under either set of circumstances, this tattoo
constitutes a statement that is a party-admission and is therefore non-hearsay.
Furthermore, even assuming that the Court cannot view this as Mr. White’s own
direct admission without the facts surrounding the inking of the tattoo, the Court is
convinced that it would still qualify as an adoptive admission. Consequently, it still
constitutes non-hearsay. Rule 801(d)(2)(B) provides that when a “statement is offered
against a party and is . . . a statement of which he has manifested his adoption or belief
in its truth . . .”, that statement is not hearsay. 12 When the circumstances surrounding
8
D.R.E. 801(c).
9
Id. at 801(d)(2).
10
Id. at 801(d)(2)(A).
11
Id. at 801(a).
12
Id. at 801(d)(2)(B).
6
a statement by someone other than the declarant evidence that the party manifested his
adoption or belief in the statement, it is admissible as non-hearsay pursuant to the
Delaware Rules of Evidence. 13 That Mr. White acquired this tattoo and has not tried
to cover it with a different tattoo or remove it completely is evidence that he has
manifested his adoption or belief in the statement. Therefore, the court is convinced
that even if this did not constitute an admission made by Mr. White himself or by
another in a representative capacity, it is clearly an adopted admission. Pursuant to the
rules of evidence, under either set of circumstances, it is non-hearsay.
C. The admission of this evidence does not violate Mr. White’s Constitutional
right to confront witnesses against him.
In one sentence in Mr. White’s response to the State’s motion, in a conclusory
manner, he states that this evidence will violate his rights under the Confrontation
Clause of the Sixth Amendment to the United States Constitution and Article I, section
7 of the Delaware Constitution. However, Mr. White does not provide any factual or
legal analysis in support of this argument. Nor does he cite to any relevant case law to
support his argument. Mr. White did not expand on this proposition at the oral
argument either.
Regardless, as the Court finds that the tattoo qualifies as a party-admission, the
admission of this evidence does not violate Mr. White’s constitutional right to confront
witnesses against him. 14 It is clear that the Confrontation Clause does not apply to
13
See Swan v. State, 820 A.2d 342, 353 (Del. 2003) (holding that the defendant adopted a declarant’s
statement regarding the defendant’s guilt because the surrounding circumstances manifested that the
defendant believed the declarant’s statements were true and were therefore treated as a party-
admission).
14
See United States v. Jones, 314 Fed. Appx. 883, 886 (7th Cir. 2009) (holding that the Sixth
Amendment’s Confrontation Clause is only implicated by testimonial statements; party-admissions
are non-testimonial and therefore do not implicate the Sixth Amendment); United States v. Jones, 205
Fed. Appx. 327, 342–343 (6th Cir. 2006) (holding that a party-admission is non-testimonial and
therefore does not violate the Confrontation Clause).
7
party-admissions. The Supreme Judicial Court of Maine aptly explained the rationale
for this principle:
[The Confrontation Clause] is the guarantee of opportunity for cross-
examination, to expose the possible unreliability of evidence. Since
however, the traditional common law rationale for receiving the extra-
judicial admission of a party in evidence against him is that a party cannot
object to his failure to have a chance to cross-examine himself i.e. to
confront himself . . . there is no reasonable basis for applicability of the
confrontation Clause as to a party’s admission. 15
As this is an admission by a party opponent, this evidence does not implicate Mr.
White’s right to confront witnesses.
D. Any unfair prejudice does not substantially outweigh the evidence’s
probative value; therefore, the evidence is admissible under Delaware
Rule of Evidence 403.
As the Court finds that Mr. White’s tattoo constitutes a party-admission making
it non-hearsay and that it is not appropriately analyzed under Rule 404(b), the Court
turns to Rule 403 to determine whether the evidence is admissible. Notwithstanding
the evidence’s potential admissibility as non-hearsay, the Court may exclude relevant
evidence “if its probative value is substantially outweighed by a danger of unfair
prejudice.”16 Evidence is unfairly prejudicial when it creates an “undue tendency to
suggest that the jury will render an adverse decision based on emotional grounds,
instead of properly weighing the evidence.”17
15
State v. Kimball, 424 A.2d 684, 688 (Me. 1981) (citations omitted).
16
D.R.E. 403.
17
Gallaway v. State, 65 A.3d 564, 571 (Del. 2013) (quoting Williams v. State, 494 A.2d 1237, 1241
(Del. 1985)). See also United States v. Gibbs, 182 F.3d 408, 429 (6th Cir. 1999) (quoting United
States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993)) (noting that “[u]nfair prejudice does not mean the
damage to a defendant’s case that results from the legitimate probative force of the evidence; rather
it refers to evidence which tends to suggest decision on an improper basis”).
8
A defendant’s tattoo can be relevant and probative to his identity as the person
who committed the crime. In arguing that the tattoo was admissible under Rule 404(b),
the State maintained that the tattoo is relevant to the identity of the person who
committed the robbery. While the proper analysis is under Rule 403 rather than Rule
404(b), evidence tending to show the identity of a person who committed the crime
must be weighed pursuant to Rule 403 as well. Here, the State maintains that this tattoo
is probative regarding the identity of the person who committed the robbery while using
duct tape. Mr. White counters that identity is not an issue in the case because he
previously confessed to the underlying robbery.
While Mr. White may have confessed to the commission of the robbery that
occurred in conjunction with the murder, the identity of the robber remains an issue in
the case.18 Mr. White has not pled guilty to this charge, and therefore, the State
maintains its burden of proving beyond a reasonable doubt that Mr. White was the
person who committed the home invasion and robbery that accompanied the murder.
Moreover, identity is particularly at issue here because of the manner in which the
perpetrators carried out this crime. All three participants entered the house wearing
disguises. Under such circumstances, the State should be permitted to establish identity
with other admissible evidence. Here, the tattoo is circumstantial evidence of the
identity of one of the perpetrators.
Relevant evidence is any evidence that has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or
18
See State v. Sanchez, 635 P.2d 1217, 1222 (Ariz. Ct. App. 1981) (holding that the defendant’s
tattoos were properly admitted evidence showing the defendant’s identity as the person who
committed the crime despite the defense’s argument that identity is not an issue; the evidence was
admissible because the prosecutor had to prove this element of the crime). While in the Sanchez case
the defendant did not admit to his part in the crime, the Court does not believe that this distinction
changes the outcome because the State is still required to prove that Mr. White was the one who
committed the robbery crime. The State is permitted to prove this element with any admissible
evidence including the tattoo.
9
less probable than it would be without the evidence.” 19 The State argues that the tattoo
is evidence of identity because having this tattoo makes it more probable that Mr. White
committed the robbery. The State maintains that the commission of this crime involved
the use of duct tape, and therefore, the perpetrator committed the crime in the same
fashion as that indicated by Mr. White’s tattoo. In essence, this is a common plan or
scheme argument in that the manner in which the perpetrator carried out this crime was
unique to a specific individual. Therefore, someone with a tattoo claiming to carry out
similar crimes in a similar fashion makes it more probable that the person with the
tattoo committed this specific crime.
The Court recognizes that this argument would be stronger had the State offered
evidence of Mr. White’s previous crimes that involved the use of duct tape. However,
despite the lack of evidence of prior crimes carried out in a similar fashion, looking at
the plain meaning of Mr. White’s tattoo, “Duct Tape Bandit,” one cannot read it, using
common sense, to mean anything other than what it says: that he commits crimes
similar to that of robbery with the use of duct tape. For purposes of a Rule 403
balancing test, the Court finds that this evidence aptly meets the relevancy threshold
and is highly probative of identity.
Furthermore, a defendant’s tattoo can also be probative of his intent and motive
to commit a crime. 20 The Delaware Supreme Court’s decision in State v. Watson, is
19
D.R.E. 401.
20
State v. Watson, 2015 WL 1279958 (Del. Mar. 19, 2015) (Slip Op.); Roth v. State, 788 A.2d 101,
111 (Del. 2001) (holding that it was proper for the trial court to admit testimony describing a
defendant’s tattoo of a gun on his back and the words “No Limit,” when the defendant’s aversion to
firearms was at issue). See United States v. Pierce, 785 F.3d 832, 841 (2d Cir.), cert. denied, 136 S.
Ct. 172, 193 L. Ed. 2d 139 (2015), and cert. denied sub nom. Colon v. United States, 136 S. Ct. 213,
193 L. Ed. 2d 163 (2015), and cert. denied sub nom. Meregildo v. United States, 136 S. Ct. 270, 193
L. Ed. 2d 198 (2015) (admitting evidence of a tattoo which meant “Young Gunnaz Killer” where
tattoo evidence helped to “establish [defendant’s] motive for violence against the Young Gunnaz,” a
rival gang); Slavin v. Artus, 413 Fed. Appx. 380 (2d Cir. 2011) (allowing admission of a defendant’s
“white supremacist tattoos to establish motive and intent”); Morris v. State, 358 Ark. 455 (2004)
10
apposite to the facts here. In Watson, the defendant was on trial for shooting at a police
officer’s home. 21 The Watson court admitted into evidence depictions of the
defendant’s tattoo which read “187.”22 Testimony was heard explaining that “187”
meant “officer down,” i.e., the murder of a cop, and was a motto that the defendant
lived by.23 The Watson court held that the tattoo “evidence was highly probative in
proving [the defendant’s] intent and motive in shooting at [the officer’s] home, and
was not outweighed by any alleged prejudice.”24
Similarly here, the tattoo reading “Duct Tape Bandit” tends to show Mr. White’s
motive, intent, and state of mind, in entering the home and committing certain acts
therein. Unlike in the Watson case where testimony was needed to establish the tattoo’s
meaning, here no such testimony is required. Mr. White’s tattoo has a plain and clear
meaning without testimony providing such context. The Court finds the tattoo
evidence is highly probative to prove matters relevant to the State’s case-in-chief. Mr.
White stands accused of several serious felonies, a number of which have intent as a
factor, which the State bears the burden of proving in its prima facie case. 25
While the Court recognizes that evidence of tattoos can be prejudicial, here there
is minimal risk of unfair prejudice. Any harm to Mr. White’s case caused by admitting
this tattoo evidence will likely be due to the legitimate probative force of the evidence,
as it indicates his identity, intent, or motive to commit certain criminal acts through the
use of duct tape. Accordingly, the Court finds that any potential unfair prejudice does
(admitting a tattoo reading “Death Before Dishonor” where the defendant’s motive and state of mind
in situations where he was disrespected was at issue).
21
Watson, 2015 WL 1279958, at *4.
22
Id.
23
Id.
24
Id.
25
E.g., home invasion requires the state to prove that a defendant entered a home with “intent to
commit a crime therein,” 11 Del. C. § 826(a).
11
not substantially outweigh the evidence’s probative value. Moreover, any unfair
prejudice can be significantly mitigated by an appropriate limiting instruction.
Therefore, notwithstanding Rule 403, the evidence will be admissible at trial provided
that facts are admitted in evidence tending to show that the perpetrators carried out
these crimes with the use of duct tape as alleged by the State.
IV. Conclusion
For the reasons set forth above, evidence of Mr. White’s tattoo is admissible for
the limited purpose of proving identity, intent, and motive. The Court will issue a
limiting instruction, at Mr. White’s request, to ensure that the jury does not consider
this evidence for any improper purpose. Since the photograph included with the State’s
proffer includes a picture of Mr. White showing various other tattoos including one
depicting a gun and another reading “Death Before Dishonor,” which the State has not
sought to admit, the State must redact any photos of Mr. White’s tattoo. This will
ensure that none of Mr. White’s other tattoos are visible to the jury or otherwise
presented to them.
IT IS SO ORDERED
/s/Jeffrey J Clark
Judge
12
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75 Cal.Rptr.3d 162 (2008)
161 Cal.App.4th 1362
The PEOPLE, Plaintiff and Respondent,
v.
Robert MENDEZ et al., Defendants and Appellants.
No. F052340.
Court of Appeal of California, Fifth District.
April 11, 2008.
*163 Jeffrey S. Kross, under appointment by the Court of Appeal, Oakland, for Defendant and Appellant Robert Mendez.
*164 Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Perez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
OPINION
GOMES, J.
A jury found appellants Robert Mendez and Anthony Perez guilty of battery with infliction of serious bodily injury on a fellow inmate at the California Substance Abuse Treatment Facility in Corcoran. (Pen.Code, § 243, subd. (d).)[1] The trial court found true the allegations that Mendez had five strike priors and that Perez had two, declined to strike any of them, and `sentenced each to a 25-to-life term in state prison.
On appeal, Mendez argues that the trial court's failure to hold a hearing on the grievance in his new trial motion about the competence of his trial attorney requires a remand for a Marsden[2] hearing. Solely as to Mendez, we will reverse the judgment and remand the matter with directions to the trial court to hold a Marsden hearing and, on that foundation, either to appoint new counsel on his new trial motion or to reinstate the judgment or to proceed otherwise as authorized by law.[3]
On appeal, Perez argues that his assault with a deadly weapon strike prior is invalid, that the trial court committed an abuse of discretion by declining to strike his assault with a deadly weapon strike prior, and that he is entitled to additional presentence credits over and above those the trial court awarded. Solely as to Perez, we will remand the matter with directions to the trial court to award him 844 actual custody days plus 422 conduct credit days for a total of 1,266 presentence credit days, but otherwise we will affirm the judgment.
FACTUAL BACKGROUND
On March 27, 2003, correctional sergeant Mathew Juarez let cellmates Mendez and Perez out of their cell to make phone calls and, minutes later, let inmate Reuben Herrera out of his cell to attend a Board of Prison Terms hearing. Mendez and Perez ran toward Herrera, Perez punched Herrera in the face, and Herrera's knees buckled. Juarez activated his alarm, gave all inmates orders to get down, and positioned himself to utilize force. Mendez and Perez both repeatedly punched Herrera in the face with closed fists. Juarez twice ordered Mendez and *165 Perez to stop fighting. Neither obeyed him.
Juarez fired a .40 millimeter "less lethal" projectile at Perez's lower extremities. Mendez and Perez each took about 10 steps backward, lay down on their stomachs with their arms out, and made barking noises. Herrera slid down the wall, lay motionless on his back, and died. He suffered blunt force trauma behind the left ear causing a skull fracture and a brain injury and blunt force trauma to the left eye likewise causing a skull fracture and a brain injury. Each injury was capable of causing death. The more severe injury, the fracture behind the left ear, could have been caused by the projectile from Juarez's weapon, but the less severe injury, the trauma to the left eye, could not. Herrera suffered multiple non-life-threatening head injuries consistent with the infliction of multiple blows to the head.
DISCUSSION
1. Mendez: Failure to Hold Marsden Hearing
Mendez argues that the trial court's failure to hold a hearing on the grievance in his new trial motion about the competence of his trial attorney requires a remand for a Marsden hearing. The Attorney General argues the contrary.
At the probation and sentencing hearing, Mendez's trial attorney informed the trial court that her client was making a new trial motion "based on competency of counsel." In open court, the trial court asked her, "What does he say that was incompetent?" Mendez interjected, "Well, your Honor, there was a lot. I mean, there was eight witnesses here but none of them were called on my defense. [¶] There was exculpatory evidence. There was phone call recordings that stipulates time lines to what actually took place were never brought forth, [¶] The whole incident only occurred 11 seconds, which made it seemed like we were fighting with this individual for minutes."
At that juncture, the trial court asked, "What is it that your lawyer did or did not do that you think deprived you of a fair trial?" Mendez replied, "She didn't bring none of these into trial." The trial court replied, "Okay. [¶] Give me one witness that should have been called and tell me what that witness could have testified to that would" Mendez answered, "Well, Mr. Herpe was the individual who was on the phone, and his transcript, he even stated to the D.A.'s office that it was a one-on-one; that their individual was never which was mewas never involved. [¶] That is crucial to my case, your Honor. This is on paper, and there was another individual named Delgado who stated it was a one-on-one which he was never subpoenaed or questioned. And he it's on record to state it was a one-on-one, your Honor. [¶] This is this is crucial to my defense."
The trial court asked no more questions about Mendez's reasons for challenging his trial attorney's competence but instead, obliquely referring to an earlier continuation of the probation and sentencing hearing for a different reason, asked, "And, Mr. Mendez, why didn't you mention this the last time that you were here for a sentencing?" He replied, "Because there was some conflict about the time about whether we can get this amount of time, and she asked me, she said that they were going to postpone it so figured, well, I'll just wait until it's time to" The trial court asked, "You figured you'd have the victims come back a second time to be frustrated?" Mendez answered, "No. I didn't ask to postpone the sentencing. It wasit was done by" The trial court replied, "All right. I'll appoint [new counsel] *166 to represent Mr. Mendez for the sole purpose of investigating as to whether or not there appears to be a basis for a motion for new trial based on incompetency of counsel...."
Tasked by the trial court "to examine issues involving a possible ineffective assistance of counsel claim," Mendez's new counsel later reported his opinion after a "review of the file" that "those issues" were not "appropriate at this time for a motion ... on that basis." He told the trial court that he had informed Mendez "there may be possible issues on appeal that could be raised" but that he was "not in a position to make that judgment." Those issues, he opined, "would be more properly addressed if and when an appeal is filed in this matter," to which the trial court replied, "All right, and of course most ineffective assistance of counsel matters are raised by habeas." The trial court terminated new counsel's appointment and again assigned the case to Mendez's original trial attorney.
The Attorney General acknowledges that Mendez made a new trial motion "based on competency of counsel" but emphasizes that he never indicated "he wanted another attorney" and on that basis argues that the trial court had no duty "to conduct a Marsden hearing to investigate [his] complaints regarding his attorney's performance." He is mistaken. In People v. Stewart (1985) 171 Cal.App.3d 388, 217 Cal.Rptr. 306 (Stewart), disapproved on another ground in People v. Smith (1993) 6 Cal.4th 684, 696, 25 Cal. Rptr.2d 122, 863 P.2d 192, as stated in People v. Bolin (1998) 18 Cal.4th 297, 346, fn. 16, 75 Cal.Rptr.2d 412, 956 P.2d 374, defendant "personally instructed his appointed trial counsel to file a motion for new trial on the basis of incompetence of counsel." (Stewart, supra, at p. 393, 217 Cal.Rptr. 306.) That was adequate to put the trial court on notice of defendant's request for a Marsden hearing. (Stewart, supra, at pp. 396-397, 217 Cal.Rptr. 306.) Here, Mendez informed his trial attorney that he was making a new trial motion "based on competency of counsel." That, too, was adequate to put the trial court on notice of his request for a Marsden hearing. As our Supreme Court emphasizes, the "semantics employed by a lay person in asserting a constitutional right should not be given undue weight in determining the protection to be accorded that right." (Marsden, supra, 2 Cal.3d at p. 124, 84 Cal.Rptr. 156, 465 P.2d 44.)
Marsden imposes four requirements that the trial court here ignored. First, if "defendant complains about the adequacy of appointed counsel," the trial court has the duty to "permit [him or her] to articulate his [or her] causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance." (People v. Eastman (2007) 146 Cal.App.4th 688, 695, 52 Cal.Rptr.3d 922 (Eastman), italics added; cf. People v. Mejia (2008) 159 Cal.App.4th 1081, 1086-1087, 72 Cal. Rptr.3d 76 (Mejia).) In open court, Mendez identified by name two prospective witnesses who stated there was only one assailant, not two. He informed the trial court that one prospective witness told the district attorney he (Mendez) was not involved in the attack, but his trial attorney failed to call that person as a witness, and that the other prospective witness likewise characterized the assault as a "one-on-one," but his trial attorney "never subpoenaed or questioned" that person, either.
Although Mendez's grievance "about the adequacy of appointed counsel" suggested ineffective assistance within the scope of Marsden, the trial court failed to conduct an inquiry but instead appointed *167 new counsel to determine whether there was "a basis for a motion for new trial based on incompetency of counsel." (Eastman, supra, 146 Cal.App.4th at p. 695, 52 Cal.Rptr.3d 922; italics added.) However, the trial court "cannot abandon its own constitutional and statutory obligations to make the ultimate determination." (Id. at p. 697, 52 Cal.Rptr.3d 922, citing, e.g., Cal. Const., art. 6, § 1 [judicial power of state is vested in courts]; Code Civ. Proc, § 170 [judge has duty to decide proceeding]; People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 721, 107 Cal.Rptr.2d 323, 23 P.3d 563 [findings and recommendations of constitutionally limited nonjudicial officers must be independently reviewed by the court]; Hosford v. Henry (1951) 107 Cal. App.2d 765, 772, 238 P.2d 91 [court cannot delegate own factfinding powers].) Here, the trial court simply listened to new counsel's "opinion" that there were no "issues involving a possible ineffective assistance of counsel claim" and, with no inquiry at all, assigned Mendez's defense "back to his trial counsel."
Second, if a "defendant states facts sufficient to raise a question about counsel's effectiveness," the trial court has a duty to "question counsel as necessary to ascertain their veracity." (Eastman, supra, 146 Cal.App.4th at p. 695, 52 Cal. Rptr.3d 922; italics added.) Here, the trial court failed to question Mendez's trial attorney at all.
Third, the trial court has the duty to "make a record sufficient to show the nature of [a defendant] grievances and the court's response to them." (Eastman, supra, 146 Cal.App.4th at p. 696, 52 Cal. Rptr.3d 922.) Here, immediately after Mendez identified the two prospective witnesses who characterized the assault as a "one-on-one," the trial court asked him why he had not brought that up at the original probation and sentencing hearing, intimated that Mendez wanted "the victims [to] come back a second time to be frustrated," and appointed new counsel. The trial court made no record at all about Mendez's additional grievances, if any, or about the trial court's response, if any, to his grievances.
Fourth, the trial court must "`allow the defendant to express any specific complaints about the attorney and the attorney to respond accordingly.'" (Eastman, supra, 146 Cal.App.4th at p. 696, 52 Cal. Rptr.3d 922, italics added.) The trial court made no record at all about Mendez's trial attorney's response, if any, to his grievances. "No part of this procedure satisfied the requirements of Marsden." (Ibid.).
The final question is whether the trial court's error was prejudicial to Mendez. "There can be no doubt it was." (Marsden, supra, 2 Cal.3d at p. 126, 84 Cal.Rptr. 156, 465 P.2d 44.) Here, we cannot determine whether he had a meritorious claim of ineffective assistance, but that is not the test. Had the trial court complied with Marsden's requirements, Mendez "might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel." (Ibid.; cf. Mejia, supra, 159 Cal.App.4th at p. 1087, 72 Cal.Rptr.3d 76.) "We cannot conclude beyond a reasonable doubt that this denial of the effective assistance of counsel did not contribute to the defendant's conviction." (Marsden, supra, 2 Cal.3d at p. 126, 84 Cal.Rptr. 156, 465 P.2d 44, citing Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)
*168 2.-4.[**]
DISPOSITION
Solely as to Mendez, the judgment is reversed and the matter is remanded with directions to the trial court to hold a Marsden hearing and, on that foundation, either to appoint new counsel on his new trial motion or to reinstate the judgment or to proceed otherwise as authorized by law. (§ 1262.)
Solely as to Perez, the judgment is affirmed but the matter is remanded with directions to the trial court to award him 844 actual custody days plus 422 conduct credit days for a total of 1,266 presentence credit days and to send to every appropriate person a certified copy of an abstract of judgment so amended. Perez has no right to be present at those proceedings. (See People v. Price (1991) 1 Cal.4th 324, 407-408, 3 Cal.Rptr.2d 106, 821P.2d 610.)
WE CONCUR: VARTABEDIAN, Acting P.J., and CORNELL, J.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts 2, 3 and 4 of the Discussion.
[1] Later statutory references are to the Penal Code except where otherwise noted.
[2] People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (Marsden).
[3] In deference to the common law doctrine of ripeness, we will not address Mendez's other issue (whether the trial court committed an abuse of discretion by not striking four of his five serious felony priors at his probation and sentencing hearing). (Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal. App.4th 1716, 1722, 45 Cal.Rptr.2d 752; California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22, 61 Cal. Rptr. 618; see People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 65, fn. 6, 2 Cal.Rptr.2d 389, 820 P.2d 613.) If that issue were to ripen after remand, the parties shall have the right on appeal from' the ensuing judgment to incorporate by reference the briefing now on file on that issue and to seek concurrent adjudication of new issues, if any, that might arise from proceedings after remand. (See Cal. Rules of Court, rule 1.5(a) ["The rules and standards of the California Rules of Court must be liberally construed to ensure the just and speedy determination of the proceedings that they govern."].)
[**] See footnote*, ante.
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Case: 10-30313 Document: 00511235208 Page: 1 Date Filed: 09/16/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 16, 2010
No. 10-30313 Lyle W. Cayce
Summary Calendar Clerk
MICHAEL J. RILEY, SR.,
Plaintiff-Appellant,
v.
LOUISIANA STATE BAR ASSOCIATION; LOUISIANA ATTORNEY
DISCIPLINARY BOARD; OFFICE OF DISCIPLINARY COUNSEL FOR
THE LOUISIANA ATTORNEY DISCIPLINARY BOARD,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana,
USDC No. 2:09-CV-07710
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Michael J. Riley appeals the district court’s decision to
dismiss his claims for lack of subject matter jurisdiction. We agree with the
district court that the Rooker-Feldman doctrine deprives the court of jurisdiction
to hear Riley’s claims, and accordingly, we AFFIRM.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-30313 Document: 00511235208 Page: 2 Date Filed: 09/16/2010
No. 10-30313
F ACTUAL AND P ROCEDURAL B ACKGROUND
We begin by noting that this is not the first time Riley has asked this
Court to collaterally review a final judgment of the Louisiana Supreme Court.
Riley was disbarred from the Louisiana State Bar in 1987. After twice
seeking readmission unsuccessfully, he sought readmission for the third time in
2003. On November 19, 2004, the Louisiana Supreme Court denied his
application for readmission. Riley then sued the Louisiana State Bar
Association (“LSBA”) and the Louisiana Attorney Disciplinary Board (“LADB”)
in United States District Court, for the Eastern District of Louisiana in what
became Riley I. In Riley I, Riley claimed that he was denied readmission in
violation of his civil rights, the Due Process Clause and the Equal Protection
Clause under the Fourteenth Amendment. The district court found, in part, that
under the Rooker-Feldman doctrine, the court lacked subject matter jurisdiction
over Riley’s claims which amounted to nothing more than an impermissible
collateral attack on the Louisiana Supreme Court’s ruling denying Riley
readmission to the Louisiana State Bar. Riley appealed the district court’s
decision in Riley I to this Court, and we affirmed the district court’s dismissal for
lack of subject matter jurisdiction. See Riley v. Louisiana State Bar Ass’n, 214
Fed.Appx. 456 (5th Cir. 2007).
We now find ourselves presented with Riley II. On June 17, 2009, Riley
again moved for readmission to the LSBA. On August 19, 2009, he received a
letter from the LADB’s Office of Disciplinary Counsel (“ODC”), concerning
allegations of misconduct from when Riley was employed by FEMA in 2006-07.
The LADB then granted a stay of Riley’s June 2009 readmission application, in
order to pursue the disciplinary investigation concerning Riley’s alleged
misconduct during his tenure with FEMA.
On December 10, 2009, Riley received a notice of sworn statement demand
from the ODC. The next day, Riley filed an application for emergency writ,
2
Case: 10-30313 Document: 00511235208 Page: 3 Date Filed: 09/16/2010
No. 10-30313
Objection, and Motion for Relief from the notice of sworn statement with the
Louisiana Supreme Court. On December 14, the Louisiana Supreme Court
denied Riley’s application for relief from the notice to give sworn statement. Two
days later, on December 16, Riley filed the instant action in federal district
court, once again against the LSBA and LADB, asserting that the application of
Louisiana Supreme Court Rule XIX(6)(A) to him, as it applies to his conduct that
he deems “unrelated to the practice of law” following the termination of his
membership, amounts to an unconstitutional denial of his First and Fourteenth
Amendment rights afforded by the U.S. Constitution and 42 U.S.C. §§ 1983,
1985, and 1988.1
On February 3, 2010, the district court granted the Defendants’ Motion to
Dismiss for lack of Subject Matter Jurisdiction. In doing so, the district court
found that, just as this Court had already explained in Riley I, the
Rooker-Feldman doctrine applies to subsequent suits that are “inextricably
intertwined” with a final state court judgment–thus barring the district court’s
subject matter jurisdiction over Riley’s claims. The district court dismissed
Riley’s claims with prejudice, and the instant appeal followed.
A NALYSIS
“We review a ruling on a Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack
of subject matter jurisdiction de novo.” Budget Prepay, Inc. v. AT&T Corp.,
605 F.3d 273, 278 (5th Cir. 2010). “The party asserting jurisdiction bears the
burden of proof.” Id.
We note that in the three and one-half years since we issued our decision
in Riley I, the law in this Circuit regarding the Rooker-Feldman doctrine has not
1
On December 30, 2009, Riley filed an Amended Complaint, challenging the issuance
of a subpoena in the disciplinary investigation, and adding a claim under the Fourth
Amendment.
3
Case: 10-30313 Document: 00511235208 Page: 4 Date Filed: 09/16/2010
No. 10-30313
changed, evolved, or dissipated.2 Thus, in Riley I, we explained that “[t]he
Rooker-Feldman doctrine directs that federal district courts lack jurisdiction to
entertain collateral attacks on state court judgments.” Riley I, 214 Fed.Appx. at
458 (citing Liedtke v. State Bar of Tex., 18 F.3d 315, 317 (5th Cir. 1994)). This
is because “[c]onstitutional questions arising in state proceedings are to be
resolved by the state courts.” Liedtke, 18 F.3d at 317. Our decision in Liedtke
advises individuals like Riley that:
[i]f a state trial court errs the judgment is not void, it is to be
reviewed and corrected by the appropriate state appellate court.
Thereafter, recourse at the federal level is limited solely to an
application for a writ of certiorari to the United States Supreme
Court. The casting of a complaint in the form of a civil rights action
cannot circumvent this rule, as absent a specific delegation[,] federal
district courts, as courts of original jurisdiction, lack appellate
jurisdiction to review, modify, or nullify final orders of state courts.
Id. (internal citations, quotation marks, and brackets omitted).
Accordingly, if Riley feels that the Louisiana Supreme Court’s decision not
to grant his emergency relief and enjoin the LSBA from completing their
disciplinary investigation constitutes a violation of his constitutional rights,
Riley’s recourse is with the United States Supreme Court–not the federal district
court in the Eastern District of Louisiana. See id. Riley’s “request for . . .
injunctive relief, stripped to essentials, is an attack on the judgment of the state
district court. His . . . suit, which arises from the state proceeding, is
‘inextricably intertwined’ with that judgment.” Id. at 318 (citation omitted).
Thus, for the same reasons we iterated in Riley I, we once again conclude
that “[u]nder Rooker-Feldman, the district court lacked jurisdiction over Riley’s
claims and properly dismissed his suit.” Riley I, 214 Fed.Appx. at 459.
2
The Rooker-Feldman doctrine refers to the doctrine derived from two Supreme Court
cases, see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923).
4
Case: 10-30313 Document: 00511235208 Page: 5 Date Filed: 09/16/2010
No. 10-30313
C ONCLUSION
For the aforementioned reasons, we AFFIRM the judgment of the district
court.3
3
In affirming the district court, we also recognize the sagacity in Judge McNamara’s
warning to Riley “that if he files any further pleadings barred by the Rooker-Feldman doctrine,
his multiplication of proceedings may well be deemed ‘unreasonable’ and ‘vexatious’ to warrant
the imposition of sanctions.”
5
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406 So.2d 998 (1980)
Donald LENTINI
v.
STATE.
3 Div. 252.
Court of Criminal Appeals of Alabama.
November 25, 1980.
Rehearing Denied January 20, 1981.
After Return to Remand June 23, 1981.
Rehearing Denied August 4, 1981.
*1000 George L. Beck, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen, for appellee.
BOWEN, Judge.
The defendant was indicted and convicted for the possession of marijuana. Sentence was six years' imprisonment and a fine of $1,500.00.
The marijuana was seized in a warrantless search of a "mini-warehouse" which was rented by a third party who had given the defendant permission to use some of the contents in the warehouse. The defendant contends that the trial court failed to suppress evidence that was the fruit of an unlawful search and seizure. The State contends the defendant lacks standing to contest the validity of the search and seizure.
The trial court's decision denying the motion to suppress was made after the United States Supreme Court's decision in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), but before the decision in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). The significance of this is that in Rakas, the survival of the automatic standing rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), was not decided. This rule of Jones was specifically overruled in Salvucci. See also Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). In Salvucci it was held:
"The person in legal possession of a good seized during an illegal search has not necessarily been subject to a Fourth Amendment deprivation. As we hold today in Rawlings v. Kentucky, post, at [100 S.Ct. at] 2556, legal possession of a seized good is not a proxy for determining whether the owner had a Fourth Amendment interest for it does not invariably represent the protected Fourth Amendment interest."
* * * * * *
"While property ownership is clearly a factor to be considered in determining whether an individual's Fourth Amendment rights have been violated, see Rakas, supra, 439 U.S., at 144, n. 12, 99 S.Ct., at 430, n.12, property rights are neither the beginning nor the end of this Court's inquiry. In Rakas, this Court held that an illegal search only violates the rights of those who have a `legitimate expectation of privacy in the invaded place.' Rakas, id., at 140, 99 S.Ct., at 428. See also Mancusi v. DeForte, [392 U.S. 364, 88 S.Ct. 816, 19 L.Ed.2d 869] supra."
* * * * * *
"As in Rakas, we find that the Jones standard (legitimately on the premises) `creates too broad a gauge for measurement of Fourth Amendment rights' and that we must instead gauge in a `conscientious effort to apply the Fourth Amendment' by asking not merely *1001 whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched."
Thus under Salvucci the test of standing is whether the defendant had a legitimate expectation of privacy from governmental invasion. Whether he was legitimately on the premises is a relevant but not controlling or determinative factor in deciding one's expectation of privacy. Moreover, even had the defendant claimed ownership of the drugs found in the warehouse, this bare claim would not entitle him to challenge the search regardless of his expectation of privacy. Rawlings.
Since the issue of the defendant's right to challenge the search as defined in Salvucci was not presented to the trial court, we think it appropriate to remand so that the defendant will have an opportunity to demonstrate, if he can, that his own Fourth Amendment rights were violated. This is the same procedure followed by the United States Supreme Court in Salvucci.
REMANDED WITH DIRECTIONS.
All Judges concur.
AFTER RETURN TO REMAND
BOWEN, Judge.
After a hearing held pursuant to the order of this Court, the trial judge entered the following order:
"ORDER
"In accord with the November 25, 1980 remand of the above-styled case by the Alabama Court of Criminal Appeals, this Court has provided the Defendant/Appellant, Donald Lentini, an opportunity to demonstrate violation of his Fourth Amendment rights.
"On January 20, 1981, the application for rehearing by Appellee, State, of Alabama, was overruled and request for finding of additional facts was denied.
"After re-examination of the supplemental transcript and hearing of arguments by both parties, this Court finds that Mr. Lentini had a `legitimate expectation of privacy in the invaded place.' Under the theory of Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Defendant testified in the hearing to suppress on March 3, 1980 that he had paid rent on the warehouse. (Supp.Trans., P-28)
"`Q. You paid rent on this warehouse?
A. Yes, sir.
Q. When?
A. I don't remember the exact date, but that was in the deal with Gloria (Goldson, Lessor of the warehouse) loaning me the furniture. That I was to keep upyou know, pay for the place that it was being kept, what I didn't use.' (Supp.Trans, p-28-29)
"This arrangement between the Defendant and Gloria Goldson gave him a legitimate expectation of privacy in the warehouse.
"Upon re-examination of the evidence presented in the supplemental transcript, this Court reaffirms that the original motion of Donald Lentini as to the amphetamines was well taken, in that they were not in plain view of the police officers making the arrest. This Court previously granted the Motion to Suppress as it pertains to the amphetamines. However, the Court finds, under the facts here, that marijuana was in plain view from the outside of the warehouse. The following facts are relevant:
"On the evening of September 15, 1979, at approximately 10:00 P. M., Officers Scott Pilgreen and P. T. Marshall of the Montgomery City Police Department were on routine patrol when they drove by the Storsafe Mini-Warehouse on the Eastern Bypass and observed two black chopper motorcycles parked outside one of the miniwarehouse doors. Because it was unusual and suspicious to see two motorcycles parked there at 10:00 at night the officers believed that a burglary was in progress and pulled up to investigate.
"When the officers pulled up to the motorcycles, a white male stuck his head out *1002 the door, looked directly at the police officers, and then stuck his head back inside the warehouse. Office Pilgreen radioed the dispatcher that a burglary was in progress. The officers waited a minute or two trying to decide what to do.
"The Defendant and another suspect, Barry Williamson, came out of the warehouse and left the door open. Officer Pilgreen testified that the door was left `wide open' and Officer Marshall testified that it was one-half to three-fourths open.
"While Officer Pilgreen kept him covered, Officer Marshall approached the suspects. According to the Defendant's testimony, `as soon as we walked out, opened the door and all, they had guns on us. And they said, you know, put your hands up against the wall and don't make a move. So, we just sort of turned to the left and put our hands up against the wall.'
"Officer Marshall had to walk past the miniwarehouse door to get to the suspects. As he approached he smelled burning marijuana. The odor was very strong. He had smelled marijuana before, attending classes on drugs, and had identified marijuana before.
"Officer Marshall testified that while at first he could not positively identify the butt that he saw on the floor to be marijuana, from outside the building, that when he got to the Defendant and smelled the marijuana and looked back inside the door he could identify it.
"He further testified that from outside of the building the substance `appeared to be marijuana.' (Supp.Trans. P-19)
"Under the plain view doctrine of Coolidge v. New Hampshire, 403 U.S. 443, 92 S.Ct. 2022, 29 L.Ed.2d 564 (1971), this Court finds that there was prior justification for an intrusion onto the property of Storsafe Mini-Warehouses in that the officers had `probable cause to believe that a burglary was taking place.' Secondly, this Court finds that Officer Marshall came across the evidence of the marijuana cigarette and the marijuana in the roasting pans inadvertently. He saw both pieces of evidence while moving toward the suspects to frisk them for weapons or burglary tools. Contraband was in plain view through the open door of the warehouse without the officers entering it. Thirdly, the Court finds that the objects discovered were immediately recognized as evidence of wrongdoing. Officer Marshall testified that both pieces of evidence appeared to be marijuana, relying on his senses of smell and sight.
"The Defendant argues that two conditions must exist in order to establish `exigent circumstances', an exception that permits the officers to intrude and seize evidence in plain view. First, Defendant states that the State of Alabama must show that a warrant could not have been obtained in advance. There is no question that the officers had no time to obtain a warrant in advance of intrusion on the premises of Storsafe Mini-Warehouses because they had probable cause to believe that a burglary was then in progress. As to the individual warehouse of Defendant, Donald Lentini, by leaving the door open Officer Marshall could smell and see evidence of marijuana from outside the individual warehouse.
"The Defendant also claims that there must be a clear and present danger, not merely a problematical one, that the evidence would be removed or destroyed if time were taken to obtain a warrant. In the case at hand, Officer Marshall observed that the cigarette butt was still burning, making it possible for this evidence to be destroyed by the time that a warrant could be obtained. Thus, he acted properly in seizing this evidence immediately.
"As to the marijuana found in the roasting pan, this Court believes that when police are legitimately on the premises and subsequently detect contraband as is set forth above, the additional requirement that the evidence be in clear and present danger of being destroyed is not essential since the search or seizure obviously is reasonable. In this particular situation, the probable cause that a burglary *1003 was being committed gave the police legitimate access to the Storesafe Mini-Warehouse area. The Defendant, by leaving the door of his individual warehouse open, permitted the police to obtain a clear view of marijuana therein.
"In fact, by leaving the door of the warehouse open, the Defendant negates his expectation of privacy under Rakas, supra, as to the marijuana. The Court of Appeals of Washington encountered a similar situation in State v. Proctor, [12 Wash.App. 274] 429 [529] P.2d 472 (1974). A Seattle police officer responded to a burglar alarm which was sounding in a real estate office owned by Proctor. When the officer arrived, he discovered that a basement door was open and the alarm was still operating. The officer entered the building but found no one inside. However, he did observe a great deal of office equipment, and other items, including an outboard motor, movie projectors and radios.
"Previously, this officer had been told by an informant that Defendant Proctor was engaged in selling and storing stolen property. He, therefore, copied the serial numbers of the calculators. The Court held that since the officer was legitimately on the premises, and was aware of the possibility of theft, he had probable cause to believe he was looking at stolen property.
"The Motion to Suppress as it pertains to marijuana be and the same is hereby OVERRULED.
"DONE this the 4th day of May, 1981.
"/s/ Joseph D. Phelps
"Circuit Judge"
We adopt this order as the opinion of this Court. When conflicting evidence is presented on the issue of probable cause to search and the trial judge finds that probable cause did exist, great weight must be given his judgment. Weatherford v. State, 369 So.2d 863 (Ala.Cr.App.), cert. denied, 369 So.2d 873 (Ala.1979).
We have searched the record and found no error prejudicial to the defendant. The judgment of the Circuit Court is affirmed.
OPINION EXTENDED;
AFFIRMED.
All Judges concur.
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784 F.Supp. 160 (1992)
PETROLEO BRASILEIRO, S.A., PETROBRAS, Plaintiff,
v.
NALCO CHEMICAL COMPANY, Defendant.
Civ. A. No. 90-1092.
United States District Court, D. New Jersey.
February 10, 1992.
*161 *162 Peter D. Aufrichtig, Aufrichtig Stein & Aufrichtig, P.C., New York City, for plaintiff.
Dennis LaFiura, Pitney, Hardin, Kipp & Szuch, Florham Park, N.J., for defendant.
OPINION
BROTMAN, District Judge:
Presently before the court is defendant Nalco Chemical Company's motion for summary judgment or, in the alternative, partial summary judgment dismissing any claim for market loss damages. After considering the submissions of the parties and the arguments of counsel, the court will grant defendant's motion for summary judgment.
I. FACTS AND PROCEDURE
On December 18, 1989, Internor Trade, Inc. ("Internor") purchased a cargo of approximately 334,000 barrels of high pour, no. 6 fuel oil ("the cargo") which was to be transported by the vessel M/T Mantinia from Bahia, Brazil to Stapleton Anchorage, New York Harbor for sale to Clarendon Marketing, Inc. ("Clarendon"). A survey of the cargo at loadport indicated that the cargo had a basic sediment and water content of 1.1%. The Mantinia arrived at New York Harbor on December 28, 1989. A survey of the cargo in New York Harbor indicated that the cargo had a basic sediment and water content of 4.0% to 4.5%. Clarendon rejected the cargo because its water content exceeded contract specifications. On or about December 31, 1989, Internor arranged to have 173,000 barrels of cargo having the highest basic sediment and water content stored in a tank leased from Clarendon at IMTT-Bayonne.
In January 1990, Internor sought bids to de-water the cargo from several tankage dehydration companies. One of the bidders was the defendant Nalco Chemical Company ("Nalco") which manufactures and markets demulsifiers to de-water petroleum hydrocarbons. Internor had dealt with Nalco twice before. The initial contact was for the treatment of a small quantity of high water content fuel. Internor did not seek a guarantee and the treatment turned out to be unsuccessful. The second experience involved Nalco's proposal to treat No. 6 fuel oil from Bahia, Brazil stored at IMTT-Bayonne. Nalco refused to give a guarantee and its proposal was refused in favor of treatment by S & D Oil Technics ("S & D") which provided a guarantee. For the transaction at issue in this litigation, S & D also submitted a written proposal to Internor on January 5, 1990. Its proposal included supplies and treatment supervision, "100% guaranteed results" at a price of $143,000.00.
Internor's contact with Nalco was initiated by Internor's Operations Manager, William Okerlund who spoke with Walter Wasylak, a Nalco Technical Representative sometime between December 30, 1989 and January 2, 1990. After Wasylak communicated his recommendation for a product, dosage and temperature to Okerlund, Okerlund asked Wasylak whether Nalco would guarantee the results of its treatment. Wasylak told Nalco that as a matter of company policy, Nalco did not give guarantees nor could he personally guarantee results but that it was his opinion that its treatment would be successful. On January 4, 1990, Wasylak reported the results of his analysis of the cargo to Okerlund in a written proposal and offered to provide Nalco 5547 Emulsion Breaker to Internor at a price of $1.61 per pound plus technical assistance during the treatment. The written proposal stated "further testing of the samples with various emulsion breaking chemicals indicated that Nalco 5547 emulsion breaker can reduce the water content of the fuel oil to 0.5%." The total price of Nalco's treatment program was $24,673.25, increased to $30,164.15 when the quantity of cargo to be treated was increased by approximately 59,000 barrels.
Based on the written proposals he had before him from Nalco and S & D, Mauricio Ferreira, Internor Deputy General Manager and Petroleum Department Manager, chose Nalco. Ferreira contends that his decision was based on "Nalco's lower price, its ability to start more quickly (S & D would have to ship its product from Europe" *163 while the Nalco material was in New Jersey, the site of the cargo), "prior dealings with S & D and Nalco's guarantee as found in its written offer.... [His] review of the offer found a clear representation and warranty of successful results which [Internor] had required."
On or about January 11, 1990, Nalco 5547 was injected into the tank at IMTT-Bayonne containing the cargo. Soon after the treatment, Internor tested some samples of the cargo and determined that the water content had not dropped significantly. Internor considered Nalco's treatment to have been unsuccessful. Rogerio Manso da Cost Reis ("Manso"), Internor's Manager of Physical Products, dealt with Nalco previously and was on vacation at the time of this transaction. When he returned in late January 1990, Manso questioned his Operations Department as to why Nalco was retained since he was aware that they previously refused to give any sort of guarantee. He was told that, in this case, Nalco did not give any kind of written guarantee but verbally mentioned a "round figure, kind of guarantee" that its product and treatment would work.
Internor was liquidated as a result of political events in Brazil sometime in 1990. During the process of its liquidation, Internor assigned its right, title and interest in the claims asserted against Nalco in this action to Petroleo Brasileiro, S.A. Petrobras ("Petrobras"), the Brazilian national oil company and the plaintiff in this action.
II. DISCUSSION
The standard for granting summary judgment is a stringent one. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir.1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir.1983). In deciding whether there is a disputed issue of material fact the court must view all doubt in favor of the nonmoving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir.1983), cert. denied, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910 (1984); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir.1972). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Recent Supreme Court decisions mandate that "a motion for summary judgment must be granted unless the party opposing the motion can produce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring) (citing Anderson, 477 U.S. 242, 106 S.Ct. 2505, and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Moreover, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11.
A. Uniform Commercial Code or General Contract Law?
In its motion for summary judgment, Nalco contends that its transaction with Internor is a mixed goods and services contract in which the predominant feature of the contract is the sale of goods. It contends that the sale of chemicals was the predominant feature of the contract and the Uniform Commercial Code ("UCC") as adopted in New Jersey applies. N.J.S.A. 12A:1-101 et seq. Petrobras contends that the contract was predominantly a service *164 contract for the treatment of oil and that general contract law of the state of New Jersey applies.
The New Jersey Supreme Court has addressed the issue of whether UCC warranty principles apply to mixed goods and services contracts. Newmark v. Gimbel's, Inc., 54 N.J. 585, 258 A.2d 697 (1969). It held that a mixed goods and services contracts involving a transaction between a beauty parlor operator and a patron to be governed by UCC general warranty principles. Id. (injury to patron's hair resulting from product used to apply a permanent wave):
The transaction, in our judgment, is a hybrid partaking of incidents of a sale and a service. It is really partly the rendering of service, partly the supplying of goods for a consideration.... It was not the intention of the framers of the [UCC] to limit the birth of implied warranties to transactions which technically meet its definition of a sale.... It seems to us that the policy reasons for imposing warranty liability in the case of ordinary sales are equally applicable to a commercial transaction such as that existing in this case....
Id. at 593-595, 258 A.2d 697.
Because of the New Jersey Supreme Court's decision, it is irrelevant whether the hybrid transaction at issue is predominantly one for goods or one for services. No factual issue is presented which affects Nalco's right to summary judgment since either way, New Jersey courts apply UCC warranty principles.
B. Express Warranty
Petrobras contends that Nalco expressly warranted that its 5547 emulsion breaker would reduce the water content of the cargo. It maintains that Nalco's January 4, 1990 written proposal contained affirmations of fact that were relied upon by Ferreira in choosing Nalco and formed a basis of the bargain. Moreover, Petrobras contends that the parol evidence rule bars admission of Okerlund's and Manso's testimony indicating that Nalco was unwilling to provide a guarantee of its product's results. Nalco argues that no express warranty ever came into existence.
Section 12A:2-313 of the New Jersey Statutes Annotated states in relevant part:
1) Express warranties by the seller are created as follows:
a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise....
2) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.
Section 12A:2-316(1) provides:
Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed whenever reasonable as consistent with each other; but subject to the provisions of this chapter on parol or extrinsic evidence (12A:2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.
In interpreting Section 12A:2-316, New Jersey Study Comment 1 states:
[where] the `disclaimer' is specific and voiced not in a form or in unexpected or unbargained for language, it should control, for in such a case no express warranty has been disclaimed, but rather, the `disclaimer' a basic dickered term has shed light on the entire contract that a reasonable construction of it is that the seller has made no express warranty.
An exclusion of express warranties is inoperative to the extent its terms are unreasonably inconsistent with the express warranties that are given. Gladden v. Cadillac Motor Car Division, 83 N.J. 320, 330, 416 A.2d 394 (1980); Realmuto v. Straub *165 Motors, Inc., 65 N.J. 336, 341 n. 2, 322 A.2d 440 (1974).
The court holds that the deposition testimony of two of Internor's employees at the time of the transaction, Okerlund and Manso, clearly indicates that Nalco had no intention of guaranteeing its 5547 emulsion breaker product. Okerlund testified that in his conversation with Wasylak, he was told that no guarantee would be provided. After returning from his vacation, Manso was surprised that Internor had accepted Nalco's proposal since in the past, Nalco was unwilling to guarantee its product which had proved unsuccessful.
In its January 4, 1990 written proposal, Nalco stated that its "5547 emulsion breaker can reduce the water content of the fuel oil to 0.5%." Perhaps, if Okerlund was not so explicit in maintaining that neither Nalco nor he personally could guarantee the effectiveness of its product, an express warranty would have been created by this language guaranteeing the results of the emulsion breaker. Since this is not the case, and since Okerlund was explicit in maintaining that no guarantee would be forthcoming, Petrobras cannot claim the benefits of an express warranty. The court's conclusion is not affected by the fact that Wasylak may have told Okerlund that he believed that the product would be successful since a "statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty." N.J.S.A. 12A:2-313(2).
It is still to be determined whether the parol evidence rule bars the testimony of Okerlund and Manso. Section 12A:2-202 of the New Jersey Statutes Annotated states in relevant part:
Terms ... which are ... set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented
a) by course of dealing or usage of trade (12A:1-205) or by course of performance (12A:2-208)....
Even if a writing, in this case Nalco's January 4, 1990 written proposal, is considered to be the complete and exclusive statement of the terms of the agreement, it can be explained by course of dealing, usage of trade or course of performance. B.F. Hirsch v. Enright Refining Co., 577 F.Supp. 339, 345 (D.N.J.1983); Kearny & Trecker v. Master Engraving Co., 211 N.J.Super. 376, 381-382, 511 A.2d 1227 (App.Div.1986). UCC Comment 2 to Section 12A:2-202 states:
Paragraph (a) makes admissible evidence of course of dealing, usage of trade and course of performance to explain or supplement the terms of any writing stating the agreement of the parties in order that the true understanding of the parties as to the agreement may be reached. Such writings are to be read on the assumption that the course of prior dealings between the parties and the usages of trade were taken for granted when the document was phrased. Unless carefully negated they have become an element of the meaning of the words used.
The term course of dealing is defined in Section 12A:1-205 of the New Jersey Statutes Annotated. Section 12A:1-205 states that:
[a] course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.
Here, the testimony of Okerlund and Manso is not barred by the parol evidence rule since it explains the meaning of Nalco's January 4, 1990 written proposal. Manso's previous dealings with Nalco clearly indicate that Nalco did not guarantee the effectiveness of its 5547 emulsion breaker. Moreover, Okerlund's dealings with Wasylak also indicates that Nalco had no intention of changing its policy of not guaranteeing its emulsion breaker. On its face and without reference to course of dealing and course of performance, it is unclear whether or not Nalco's written proposal is intended to guarantee the results. Unlike, S & D's proposal, it does not warrant *166 "100% guaranteed results." Okerlund's and Manso's testimony sheds light on whether a guarantee existed and since it relates to Internor's previous dealings with Nalco, it is not barred by the parol evidence rule.
The court finds that Ferreira's certification that he believed that Nalco clearly represented in its January 4, 1990 written proposal that it was guaranteeing successful results as non-probative of the issue of whether or not a warranty existed. "Under New Jersey contract law, courts look to the objective intent manifested in the language of the contract in light of the circumstances surrounding the transaction." Dome Petroleum Limited v. Employers Mutual Liability Insurance Co., 767 F.2d 43, 47 (3rd Cir.1985). It is the intent as expressed or apparent in the writing that controls. J.I. Hass Co., Inc. v. Gilbane Bldg. Co., 881 F.2d 89, 92 (3rd Cir.1989). "Contract construction is directed at discovering the object of intent of the parties manifested in the terms of the agreement, not the undisclosed, subjective intent of one party or another." Dome at 47; Air Master Sales Co. v. Northbridge Park Co-op, Inc., 748 F.Supp. 1110, 1115 (D.N.J.1990); Jacobs v. Great Pacific Century Corp., 104 N.J. 580, 587, 518 A.2d 223 (1986). It does not matter what Ferreira thought Nalco intended the contract to mean especially since he was not a party to the negotiations. Nor does it matter that Ferreira relied on what he thought was a guarantee. Cipollone v. Liggett Group, Inc. 693 F.Supp. 208, 213 (D.N.J.1988). The court is to look to those involved in the bargaining process, here, Okerlund and Wasylak, and Manso from previous dealings, to determine the meaning of the written proposal.
For the foregoing reasons, the court holds that there are no genuine issues of material fact as to whether an express warranty existed. Because Nalco clearly expressed that no guarantee was to be given, as a matter of law, no such express warranty ever came into existence.
C. Implied Warranty
Petrobras contends that this transaction included an implied warranty of fitness for a particular purpose. Nalco argues that it disclaimed this implied warranty.
Section 12A:2-315 of the New Jersey Statutes Annotated states that:
[where] the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.
Section 12A:2-316(3)(c) states that an implied warranty can be excluded "by course of dealing or course of performance or usage of trade." See e.g. Country Clubs, Inc. v. Allis-Chalmers Manufacturing Co., 430 F.2d 1394, 1397 (6th Cir.1970) (course of dealing and course of performance sufficient to exclude implied warranties because the parties had discussed and negotiated the warranty provisions).
The court's analysis of the alleged implied warranty of fitness for a particular purpose mirrors its analysis of the alleged express warranty. Since the court is to look to course of dealing or course of performance to see if an implied warranty has been disclaimed, again Okerlund's and Manso's testimony clearly indicates that Nalco did not intend to guarantee that its 5547 emulsion breaker would lower the water content of the cargo. Petrobras has introduced no evidence permitting a jury to find that the implied warranty of fitness for a particular purpose was not disclaimed.
III. Conclusion
For the foregoing reasons, Nalco's motion for summary judgment will be granted.
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FILED
United States Court of Appeals
Tenth Circuit
July 13, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ANDRE LAMONT THURSTON,
Petitioner - Appellant, No. 10-3053
v. (D. Kansas)
CLAUDE CHESTER, Warden, USP- (D.C. No. 5:09-CV-03028-RDR)
Leavenworth,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
Andre Lamont Thurston, a federal prisoner appearing pro se, appeals the
dismissal by the United States District Court for the District of Kansas of his
application for relief under 28 U.S.C. § 2241. He also appeals the denial of his
motion for reconsideration. He claims that he will suffer the effects of not
participating in the Federal Bureau of Prisons’ Inmate Financial Responsibility
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Program (IFRP) because the Bureau has improperly interpreted the regulations
governing the IFRP. The district court rejected his claim and he appeals. We
affirm.
On July 1, 1996, Mr. Thurston was sentenced to 360 months’
imprisonment, five years’ supervised release, a $50 criminal assessment, $3,000
restitution, and a $17,100 fine for conspiracy to possess with intent to distribute
cocaine base (crack), in violation of 21 U.S.C. § 846. He has paid the assessment
and restitution in full, but has a balance of over $14,000 due on his fine.
The purpose of the IFRP is to “encourage[] each sentenced inmate to meet
his or her legitimate financial obligations.” 28 C.F.R. § 545.10. Under the
program, prison staff assist an inmate in developing a financial plan to meet those
obligations, and monitor the inmate’s progress under the plan. See id. § 545.11.
An inmate is responsible for maintaining progress in fulfilling the financial
obligations of the plan. See id. § 545.11(b). “Payments may be made from
institution resources or non-institution (community) resources.” 1 Id.
1
28 C.F.R. § 545.11(b) reads in its entirety:
(b) Payment. The inmate is responsible for making satisfactory
progress in meeting his/her financial responsibility plan and for
providing documentation of these payments to unit staff. Payments
may be made from institution resources or non-institution
(community) resources. In developing an inmate’s financial plan, the
unit team shall first subtract from the trust fund account the inmate’s
minimum payment schedule for UNICOR or non–UNICOR work
assignments, set forth in paragraphs (b)(1) and (b)(2) of this section.
(continued...)
-2-
Mr. Thurston arrived at the United States Penitentiary at Leavenworth,
Kansas, on June 4, 2008. He began with $171.74 in his inmate trust account. On
June 12, 2008, he signed a contract to participate in the IFRP; his plan called for
quarterly payments of $25 to be withdrawn from his account beginning in
September 2008. He had no institution work assignment, and by the time he was
to make his first payment, he had depleted his account balance to $.79. He did
not make his first payment and was placed on refusal status on October 1, 2008.
He filed this suit on January 29, 2009.
The penalties for not participating in the IFRP include (1) notification to
the Parole Commission of the refusal to participate, (2) ineligibility for furlough,
(3) ineligibility for performance, bonus, or vacation pay, (4) ineligibility for work
1
(...continued)
The unit team shall then exclude from its assessment $75.00 a month
deposited into the inmate’s trust fund account. This $75.00 is
excluded to allow the inmate the opportunity to better maintain
telephone communication under the Inmate Telephone System (ITS).
(1) Ordinarily, the minimum payment for non-UNICOR and
UNICOR grade 5 inmates will be $25.00 per quarter. This
minimum payment may exceed $25.00, taking into
consideration the inmate’s specific obligations, institution
resources, and community resources.
(2) Inmates assigned grades 1 through 4 in UNICOR ordinarily
will be expected to allot not less than 50% of their monthly
pay to the payment process. Any allotment which is less than
the 50% minimum must be approved by the Unit Manager.
Allotments may also exceed the 50% minimum after
considering the individual’s specific obligations and resources.
-3-
detail outside the facility in which he is incarcerated, (5) ineligibility for
UNICOR (which is a federal work program designed to “employ and provide job
skills training” to federal inmates, UNICOR, FPI General Overview FAQs,
http://www.unicor.gov/about/faqs/faqsgeneral.cfm), (6) more stringent monthly
commissary spending limits, (7) quartering in the lowest housing status, (8)
ineligibility for community-based programs, (9) ineligibility for a release gratuity,
and (10) ineligibility for an incentive for participation in a residential drug-
treatment program. See 28 C.F.R. § 545.11(d). We question whether the
implementation of these penalties would change the conditions of Mr. Thurston’s
incarceration enough to form the basis for a cognizable habeas claim. See Glaus
v. Anderson, 408 F.3d 382, 387–88 (7th Cir. 2005). But because that issue is not
jurisdictional, we shall address the merits of Mr. Thurston’s contentions.
Mr. Thurston claimed in his § 2241 application (1) that the Bureau of
Prisons misinterpreted IFRP regulations and (2) that his sentencing court
improperly delegated the setting of his IFRP payment obligations. The Bureau’s
alleged misinterpretation of the regulations is the only issue he raises on appeal.
Mr. Thurston reads 28 C.F.R. § 545.11(b) to say that when he is
“unassigned to any job and has no institutional income,” Aplt. Br. at 4, the
Bureau may not require him to satisfy his obligations under an IFRP payment plan
to which he agreed, and may not subject him to sanctions for failing to make
timely payments. He asserts that § 545.11(b) allows payments to be withheld
-4-
from his account only if he has a work assignment as described in § 545.11(b)(1)
or (2). He further argues that requiring him to continue to make IFRP payments
would necessarily require him to do so with funds sent to him by his family,
contrary to the intent of the regulations.
Mr. Thurston’s view of the regulations is incorrect. To begin with,
§ 545.11(b) does not by its terms limit its applicability to inmates holding work
assignments. See 28 C.F.R. § 545.11(b). Although § 545.11(b) does not state a
minimum payment amount for inmates without work (as do § 545.11(b)(1) and (2)
for inmates who are employed), it contains no suggestion that unemployed
inmates are exempt from making their agreed-to IFRP payments.
We also reject his argument that IFRP payments should not be made from
funds received from an inmate’s family. The regulation states: “The inmate is
responsible for making satisfactory progress in meeting his/her financial
responsibility plan and for providing documentation of these payments to unit
staff. Payments may be made from institution resources or non-institution
(community) resources.” 28 C.F.R. § 545.11(b). Thus, § 545.11(b) “authorize[s]
the Bureau to consider funds received from sources other than prison work in
determining whether an inmate is able to participate in the IFRP.” Pierson v.
Morris, 282 F. App’x 347, 348 (5th Cir. 2008) (unpublished). We see no
indication that family gifts are excluded from the category of “non-institution
(community) resources.” Mr. Thurston points out that $75 per month is exempted
-5-
from assessments for the IFRP so that the inmate can maintain telephone contact
with his family; but he fails to explain why it should follow from that exemption
that all family contributions must be exempted.
We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-6-
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583 P.2d 791 (1978)
Rosemary DeHUSSON, as guardian, natural mother of the person and personal representative for the Intestate Estate of Walter DeHusson, a minor, Appellant,
v.
CITY OF ANCHORAGE, Tunnel Bay Construction Company, Stephen and Sons Construction Company and John Doe Corporation, Appellees.
No. 2996.
Supreme Court of Alaska.
July 28, 1978.
Paul L. Davis and Michael W. Sewright, Edgar Paul Boyko & Associates, P.C., Anchorage, for appellant.
Kenneth P. Jacobus, James M. Powell and Gordon J. Tans, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for appellees.
Allan E. Tesche, Municipal Attys' Ass'n, Anchorage, amicus curiae.
Murphy L. Clark, Anchorage, for City & Borough of Juneau, amicus curiae.
Before BOOCHEVER, C.J., and RABINOWITZ, CONNOR and BURKE, JJ., and DIMOND, J. Pro Tem.
OPINION
RABINOWITZ, Justice.
The central issue in this appeal involves a challenge to the notice of claims for injuries section of the Anchorage City Charter which provides, in part:
(a) The city shall not be liable in damages for injury to person or property by reason of negligence of the city, unless, within one hundred twenty (120) days after such injury occurs, the person damaged or his representative causes a written notice to be served upon an officer of the city upon whom process may be served by law. Such notice shall state that such person intends to hold the city liable for such damages and shall set forth substantially the time and place of the injury, the manner in which it occurred, the nature of the act or defect complained of, the extent of the injury so far as known, and the names and addresses of witnesses known to the claimant.
*792 (b) No person shall bring action against the city for damages to person or property arising out of any of the reasons or circumstances aforesaid, unless such action is brought within the period prescribed by law, nor unless he has first presented to the clerk a claim in writing and under oath, setting forth specifically the nature and extent of the injury and the amount of damages claimed. The clerk shall refer the claim to the city manager, who must promptly present such claim to the council for action.[1]
Appellant Rosemary DeHusson, as representative of the estate of Walter DeHusson, instituted a wrongful death action in the superior court against appellee City of Anchorage and several construction companies for the death of her minor son, Walter, who drowned when swept underwater through an open spillway into a large culvert which was part of the Westchester Lagoon recreation project under construction by the city of Anchorage and its contractors.
No notice of claim as required by the Anchorage City Charter was given to the municipality within the prescribed 120-day period. Subsequent to appellant's commencement of the superior court action, the municipality moved for summary judgment upon the ground that appellant had not complied with the notice of claim requirements of Section 1.10 of the Charter of the City of Anchorage. The superior court granted the motion for summary judgment and this appeal followed.[2]
Our recent opinion in Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska, 1978) is dispositive of the instant case; accordingly, it is unnecessary to reach the issues argued by appellant. In Johnson, we concluded that a similar notice of claims provision in the Fairbanks City Charter[3] was invalid *793 because impliedly prohibited by the two-year statute of limitations:
The two-year statute of limitations reflects a state policy that a plaintiff's commencement of action is the affirmative step necessary to assure that his assertion of a claim is timely. The uniform limitations period allows every victim of tortious conduct in Alaska, regardless of where he resides and regardless of whether the alleged tortious conduct was by a governmental unit or not, to commence an action for damages within two years without complying with any other time limit. We think the notice of claims provision in the Fairbanks City Charter seriously impedes implementation of this statewide legislative policy and therefore is impliedly prohibited.
As we noted in Maier v. City of Ketchikan, 403 P.2d 34, 36 (Alaska 1965), the purposes served by notice of claim provisions differ, in theory, from the purposes of limitations statutes. Despite these non-conflicting purposes and the laudable goals underlying the notice of claim requirements, we think the practical effect of the city charter provisions is to nullify the state legislature's establishment of a two-year period for commencing tort actions. That is, even though the two years permitted for commencing an action would still apply through AS 09.65.070, the right to bring an action in Alaska's courts would be contingent upon giving a notice of claim within a substantially shorter period of time. If the injured person failed to give notice within the prescribed time, he would be barred from pursuing his remedy in state courts, despite the fact that his action would be timely under the two-year statute of limitations.
In light of the foregoing considerations, we conclude that AS 09.65.070 impliedly prohibits municipalities from requiring a potential plaintiff to submit notice of tort claims, as a condition to bringing an action, within a period shorter than the period provided by the statute of limitations.[4]
Accordingly, Section 1.10 of the Anchorage City Charter, which bars actions against the city unless the required notice of claim has been filed within 120 days after the injury occurs, is invalid. The superior court's grant of summary judgment is reversed, and the case is remanded for further proceedings.
Reversed and remanded.
MATTHEWS, J., not participating.
RABINOWITZ, Justice, with whom BOOCHEVER, Chief Justice, joins concurring.
In my view, Section 1.10 of the Anchorage City Charter violates Alaska's constitutional guarantee of equal protection under the law. In support of her equal protection attack, appellant argues that the Anchorage Charter's 120-day notice of claim provision discriminates in favor of governmental and against non-governmental tort-feasors, as well as imposing substantial and costly burdens on the victims of governmental torts which are not borne by individuals who have been harmed by the conduct of non-governmental tort-feasors. Thus, the essence of appellant's equal protection argument is that the effect of the notice of claim provision is to arbitrarily divide all tort-feasors into two classifications: private tort-feasors to whom no notice is owed and governmental tort-feasors to whom notice is owed. In appellant's view, the Charter provision also has the effect of dividing the victims of tort-feasors into two arbitrary classes: victims of private tort-feasors who are not subject to the notice requirement, and victims of governmental tort-feasors who are subject to the notice of claim requirements of the Anchorage Charter. Given these classifications, appellant concludes:
Applying new standards of intensified equal protection scrutiny adopted by the Alaska Supreme Court, it becomes apparent that the legislative goals advanced to justify the rough classifications ... are not sufficiently tailored to survive equal protection challenge. The difference *794 in treatment between public and private tort victims effected by notice provisions can have no fair relationship to the fortuity of having been inflicted with a governmental, as opposed to private, tort. No more convincing is the distinction the provisions make between public and private tortfeasors.
Appellant's equal protection arguments find judicial support in several jurisdictions. In Reich v. State Highway Department, 386 Mich. 617, 194 N.W.2d 700, 702 (Mich. 1972), the Supreme Court of Michigan observed:
Just as the notice requirement by its operation divides the natural class of negligent tort-feasors, so too the natural class of victims of negligent conduct is also arbitrarily split into two subclasses: victims of governmental negligence who must meet the requirement, and victims of private negligence who are subject to no such requirement.
In Reich, the Michigan Supreme Court declared the notice of claim provisions unconstitutional on equal protection grounds.[1]Reich has been followed by the Supreme Court of Nevada in Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (1973), cert. denied, 414 U.S. 1079, 94 S.Ct. 598, 38 L.Ed.2d 486 (1973). And of particular significance is the Supreme Court of Washington's decision in Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845 (1975). In echoing the classification discussion of the Reich court, the Washington court, in Hunter, observed:
The effect of this and other nonclaim statutes is to deny a right of action to persons harmed by governmental misfeasance unless they provide the government with notice of their injuries within a short time after they occur. This prerequisite to tort recovery has no counterpart in actions between private parties...
Under this statutory system, victims of governmental torts must seek legal advice and act to preserve their claims within 120 days of receiving their injury. Other personal injury plaintiffs need only act within the limitation period 3 years at least in the case of adults... .[2]
In the Hunter court's view, the foregoing classifications flowing from the "nonclaim" statute constituted a barrier to suit for a significant number of victims of governmental "misfeasance." Noting that it is "a rare plaintiff who happens to know of the short notice period he must comply with, or to consult a lawyer before his time to file has expired,"[3] the Hunter court commenced its equal protection analysis by stating:
The effect of the notice requirement on tort victims not fortunate enough to be aware of it is to deny them their cause of action. The right to be indemnified for personal injuries is a substantial property right, not only of monetary value but in many cases fundamental to the injured person's physical well-being and ability to continue to live a decent life.[4]
*795 After analyzing the differences advanced to support the classifications created by the Washington "nonclaim" statute,[5] the Hunter court concluded that "the arbitrary burden placed on state claimants by this type of statute cannot withstand constitutional scrutiny."[6]
In opposition to the foregoing authorities, appellee City of Anchorage points out that the Supreme Court of Michigan's opinion in the Reich case has been rejected by eight jurisdictions as well as the District of Columbia. Notice of claims provisions have been upheld on the grounds that there exists a rational basis for the legislative classifications created by the notice provisions, and that the notice provisions established by state law are conclusive evidence that the sovereign's waiver of governmental immunity was only conditional or partial.[7] Note, Notice of Claim Provisions: An Equal Protection Perspective, 60 Cornell L.Rev. 417, 431 (1975). In particular, the City of Anchorage argues that "Reich and its progeny have chosen to ignore ... the large number of legitimate state purposes advanced by the notice provision" of the Anchorage Charter. Specifically, appellee contends that the notice and claim provision of the Anchorage Charter serves a variety of legitimate governmental purposes because it enables the city:
1. To investigate and perpetuate evidence while it is still fresh,
2. To begin preparing a defense in the event that litigation appears to be necessary,
3. Intelligently to evaluate claims in order that meritorious claims may be settled before the instigation of a law suit to avoid litigation costs,
4. To protect itself against unreasonable claims,
5. To obtain knowledge of any defects upon city property of which it might be unaware in order to facilitate prompt repairs,
6. To budget for payment of claims, and
7. To insure that officials responsible for fulfilling all of the tasks noted above are aware of their duty to act.[8]
In light of the foregoing justifications advanced in support of the Anchorage Charter's notice of claim requirement, it is the task of the judiciary to determine whether these asserted grounds of justification pass constitutional muster under appropriate equal protection tests. Turning first to the nature of the right involved, appellant contends that this court should hold that "redress in tort is deserving of the status of a fundamental right, entitled to heightened equal protection scrutiny under Alaska law."[9] Appellant argues that the *796 individual's right to meaningful redress is a "fundamental" right[10] and, therefore, that the municipality must demonstrate a compelling state interest justifying the subject notice of claim provision. Despite the foregoing, I find it unnecessary to determine whether the nature of the right involved is of fundamental proportions and calls for application of the compelling state interest standard of equal protection analysis.[11] I deem it sufficient to note that important rights of redress of persons harmed by governmental conduct are involved, as well as equally significant concomitant rights of access to judicial forums for the adjudication of liability and damage issues flowing from such governmental conduct. Given that these rights are important, I have concluded appellant has demonstrated that the distinctions drawn by the Charter's notice of claim provision between governmental and private tort-feasors are arbitrary and that the resultant categories are suspect. Consequently, the City of Anchorage must meet a significant burden in demonstrating that the distinctions and classifications created by the Charter provision have a fair and substantial relation to legitimate governmental objectives.
In choosing to apply the foregoing equal protection test, I would take this occasion to reiterate this court's holding in Isakson v. Rickey, 550 P.2d 359, 362-63 (Alaska 1976).[12] There we said, in part:
Under the rational basis test, in order for a classification to survive judicial scrutiny, the classification `must be reasonable, not arbitrary, and must rest upon some difference having a fair and substantial relationship to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'
It is this more flexible and more demanding standard which will be applied in future cases if the compelling state interest test is found inappropriate.[13]
Application of the Isakson v. Rickey equal protection test to the purported justifications which have been advanced by appellees and the amicus, in the context of the particular rights involved in the instant litigation, has led me to the conclusion that the Charter provision in question violates the equal protection provision of Alaska's constitution.
In reaching this conclusion, I find the reasoning of the Washington Supreme Court in Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845 (1975), highly persuasive. I agree with the Washington court's evaluation of the importance of the injured claimant's rights upon which notice of claims statutes, ordinances, or charter provisions impinge. As stated previously, I am also in accord with that court's conclusion that operation of such notice of claim requirements has the effect of creating arbitrary classes of tort-feasors and arbitrary classifications of tort victims. Due to such classifications, governmental tort-feasors are afforded a procedural advantage not available to nongovernmental tort-feasors; further, only victims of governmental negligence face a substantial *797 burden on the right to bring an action against their wrongdoers within the applicable statute of limitations.
In Hunter, the Supreme Court of Washington addressed the "ground of difference" most frequently advanced as a justification for the special requirement that notice statutes place on claimants, namely, the size and variety of governmental institutions and activities. In disposing of this justification, the Hunter court stated, in part:
Governmental bodies range in size from small municipal corporations such as the petitioner school district to the State itself. As a class they are neither larger than nor more liability-prone than the class of private tortfeasors, which includes everything from single individuals to giant corporations financially larger even than the State.
Most governmental subdivisions are small enough for their officials to know of incidents which may subject them to liability. In addition, they possess special investigative resources which make them `in most instances better equipped to investigate and defend negligence suits than most private tortfeasors, for whom no special notice privileges are provided by law'... . The privilege of special notice given governmental bodies, and the burden concomitantly placed on those with suits against them, cannot therefore correspond to any special need or inability to investigate particular to them.[14]
In my view, all the justifications advanced in the instant case by appellee regarding the municipality's need for prompt investigation[15] do not relate to any peculiar need of the municipality which supports the requirement of special notice from a victim of the municipality's tortious conduct. All tort-feasors have a similar interest in the prompt investigation of claims; all victims have a similar interest in obtaining redress for their injuries. As was noted by the Hunter court, most governmental units are better equipped to investigate and defend negligence actions than are private tort-feasors.[16]
Regarding the proferred justification that the notice of claim provision fulfills the need of the city to know of and correct offending conditions, I think there is merit in appellant's position that there is no greater need to know of hazards in order to repair and avoid further injuries solely because the entity responsible is a governmental unit. In this regard, the Hunter court stated: "Similarly, the importance of immediate knowledge of hazards in order to make repairs and avoid further injuries ... is no greater because the entity *798 responsible for them happens to be part of the government."[17]
As to the purported justification that the notice of claim provision is required in order to enable the City Assembly to budget for payment of the claims, the Hunter court commented:
Special notice of possible future claims does little to facilitate budget planning, ... as governmental entities so small as to be unable to use actuarial methods to forecast liabilities and self-insure, usually will purchase insurance like any private individual or corporation.[18]
Tort damages are speculative until they have been settled through the process of negotiation or by judicial proceedings. Therefore, early knowledge of the existence of possible claims will not have a significant impact on fiscal planning by governmental units. The fact that insurance is becoming harder and more expensive to obtain is not unique to governments; nor are the reasons for higher costs of liability and risk management different for government than they are for private persons or corporations.
I cannot accept the additional argument advanced by the amicus Municipal Attorneys' Association that "fundamental differences" exist between municipal and private entities. The amicus asserts that a higher duty is imposed upon municipalities because (1) taxpayers, not stockholders, support the government, and (2) vital services are provided by municipalities which cannot be curtailed. Here, I am persuaded by appellant's analysis that this "fundamental differences" justification
relies entirely on the municipality's governmental status, in and of itself, for validity, a distinction impermissibly drawn, since rejected as a legitimate difference with the state legislature's abolition of municipal immunity. Municipal government can no longer claim special treatment with respect to its wrongdoing just because it is an organization supported by taxes. Nor can it legitimately argue that governmental attempts at risk management which result in unequal treatment among injured parties are justified by a need to conserve public resources and protect against their diversion from more `public' services.[19]
In light of the foregoing, I conclude that the justifications advanced in support of the constitutionality of the classifications created by Section 1.10 of the Anchorage City Charter are insufficient when analyzed under the equal protection test adopted in Isakson v. Rickey, 550 P.2d 359, 361-63 (Alaska 1976). Therefore, I would hold that the classifications created by the notice of claim requirement between victims of governmental and nongovernmental tortious conduct, as well as between governmental and private tort-feasors, are arbitrary classifications which are not grounded upon fair and substantial distinctions between governmental units on the one hand and private individuals and corporations on the other and thus violate Alaska's constitutional guarantee of equal protection.
NOTES
[1] Section 1.10, Anchorage City Charter. Subsections (c) and (d) of this section read:
(c) Failure to give notice of injury or present a claim within the time and in the manner provided shall bar any action upon such claim.
(d) This section shall not be deemed to waive any defense of immunity which the city may have from claims for damages arising out of negligence, but shall apply in all cases where such defense is not available to the city.
The applicable state statute of limitations is found in AS 09.10.070 and provides:
No person may bring an action (1) for libel, slander, assault, battery, seduction, false imprisonment, or for any injury to the person or right of another not arising on contract and not specifically provided otherwise ... unless commenced within two years.
[2] Appellant seeks to raise three issues in this appeal:
(1) Whether Section 1.10 of the Anchorage City Charter, providing for a 120-day period within which a claimant must supply the city with written notice of his or her tort claim as a condition precedent to holding the city liable, violates the equal protection clauses of the United States and Alaska constitutions;
(2) Whether the superior court was correct in ruling that the city was not estopped to raise the defense of failure to give notice pursuant to Section 1.10;
(3) Whether Section 1.10 of the City Charter of Anchorage, regarding "injury," is applicable to cases involving death.
A few states recently have agreed with appellant's equal protection argument and have invalidated notice of claims provisions on the ground that equal protection guarantees would be violated by dividing tort victims into two subclasses: the victims of governmental negligence who must meet notice requirements and the victims of private negligence who are subject to no such requirements. See Reich v. State Highway Dep't, 386 Mich. 617, 194 N.W.2d 700 (1972); Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (1973), cert. denied, 414 U.S. 1079, 94 S.Ct. 598, 38 L.Ed.2d 486 (1973); Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845 (1975). The notice of claim provisions considered by these courts were contained in state statutes rather than in municipal charters or ordinances. Criticism of the Reich opinion can be found in Copperrider, The Court, the Legislature, and Governmental Tort Liability In Michigan, 72 Mich.L.Rev. 187, 272 (1973). Other courts have upheld notice of claims provisions on the ground that a rational basis exists for the legislative classifications created by the notice provisions and that the sovereign's waiver of governmental immunity was only conditional or partial. See Note, Notice of Claim Provision: An Equal Protection Perspective, 60 Cornell L.Rev. 417, 431 (1975). For the reasons stated in this opinion, we need not reach appellant's constitutional argument.
[3] See Johnson v. City of Fairbanks, 583 P.2d 181 at 182, n. 3, (Alaska, 1978).
[4] Id. at 187 (footnote omitted).
[1] Unlike AS 09.50.250 which provides for waiver of sovereign immunity by the State of Alaska, the statute waiving sovereign immunity which was considered by the Supreme Court of Michigan contained an explicit notice of claim requirement. Criticism of the Reich opinion can be found in Copperrider, The Court, the Legislature, and Governmental Tort Liability In Michigan, 72 Mich.L.Rev. 187, 272 (1973).
See also AS 09.65.070 which provided at the time the suit was filed:
(a) An action may be maintained against an incorporated borough, city, or other public corporation of like character in its corporate character and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of the unit of local government.
[2] Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845, 847 (1975) (footnotes omitted). In Alaska the applicable statute of limitations is two years. AS 09.10.070 provides in part:
Actions to be brought in two years. No person may bring an action (1) ... for any injury to the person or rights of another not arising on contract and not specifically provided otherwise ... unless commenced within two years.
[3] Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845, 848 (1975) (footnote omitted).
[4] Id. 539 P.2d at 848.
[5] I will discuss these and other alleged justifications subsequently.
[6] Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845, 851 (1975).
[7] See Binder v. City of Madison, 72 Wis.2d 613, 241 N.W.2d 613 (1976); Stanley v. City and County of San Francisco, 48 Cal. App.3d 575, 121 Cal. Rptr. 842 (1975); Wilson v. District of Columbia, 338 A.2d 437 (D.C.Ct.App. 1975); Batchelder v. Haxby, 337 N.E.2d 887 (Ind. Ct. App. 1975); Newlan v. State, 96 Idaho 711, 535 P.2d 1348 (1975), appeal dismissed sub nom. Agost v. Idaho, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975); Lunday v. Vogelmann, 213 N.W.2d 904 (Iowa 1973); Guarrera v. A.L. Lee Memorial Hosp., 51 A.D.2d 867, 380 N.Y.S.2d 161 (1976), appeal dismissed sua sponte, 39 N.Y.2d 942, 386 N.Y.S.2d 1029; Tessier v. Ann & Hope Factory Outlet, Inc., 114 R.I. 315, 332 A.2d 781 (1975); Awe v. University of Wyoming, 534 P.2d 97 (Wyo. 1975).
[8] Amicus Municipal Attorneys' Association additionally argues in its brief that "compliance with notice of claim provisions soon after the occurrence allows the city or its insurance adjusters to investigate the facts of the claim while they are still available." In making this argument, the Association further contends that "fundamental differences between municipalities and private corporations impose upon the former a higher requirement of efficiency and economy in risk management than in comparably sized private entities." This "high duty" is alleged to arise because the tax paying public supports municipal government and for the further reason that municipalities provide vital public services which cannot be permitted to be curtailed or eliminated by poor risk management.
[9] When presented with federal equal protection assertions and when fundamental rights or suspect categories are involved, this court is required to apply the "compelling state interest" standard.
[10] Appellant relies upon the following cases to illustrate the "centrality of reasonable redress in the American system of justice." Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 28 L.Ed.2d 113, 118 (1971); Payne v. Superior Ct. of Los Angeles County, 17 Cal.3d 908, 132 Cal. Rptr. 405, 553 P.2d 565, 570-71 (1976); Klein v. Klein, 58 Cal.2d 692, 26 Cal. Rptr. 102, 376 P.2d 70, 72 (1962). Also relied upon by appellant are the dissenting opinions of Justice McQuade in Newlan v. State, 96 Idaho 711, 535 P.2d 1348, 1356 n. 11 (1975), appeal dismissed sub nom. Agost v. Idaho, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975), and Justice Reynoldson in Lunday v. Vogelmann, 213 N.W.2d 904, 908-10 (Iowa 1973).
[11] This court has previously discussed the varying equal protection tests in Isakson v. Rickey, 550 P.2d 359, 362-63 (Alaska 1976); Lynden Transport, Inc. v. State, 532 P.2d 700, 706-07 (Alaska 1975); State v. Adams, 522 P.2d 1125, 1127 n. 12 (Alaska 1974); and State v. Wylie, 516 P.2d 142, 145 n. 4 (Alaska 1973).
[12] See also State v. Reefer King Co., Inc., 559 P.2d 56, 65 (Alaska 1976).
[13] Isakson v. Rickey, 550 P.2d 359, 362 (Alaska 1976) (citation omitted) (emphasis added).
[14] Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845, 849 (1975).
See Judge Staton's dissenting opinion in Batchelder v. Haxby, 337 N.E.2d 887, 890-91 (Ind. App. 1975), in which he writes:
Repeatedly, the stated purpose of the notice provision ... has been to inform the government entity so that it may investigate the claim, prepare its defense, or settle the claim. In light of this purpose, I can perceive of no rational basis for the distinction between similarly situated tortfeasors and victims on the basis of the tortfeasor's status as a governmental or a private entity. All tortfeasors have a similar interest in the prompt investigation of claims, in settlement, and in the preparation of a defense. All victims have a similar interest in seeking redress for their injuries. (emphasis supplied) (citations omitted)
[15] See justifications 1-4 set forth at page 11, supra.
[16] As to the asserted justification that the 120-day notice provision protects the city from unreasonable claims, I think the comments of Justice Reynoldson, in his dissent in Lunday v. Vogelmann, 213 N.W.2d 904, 911 (Iowa 1973), are persuasive. Justice Reynoldson said:
Even less valid is the frequently-encountered argument that a short-notice statute reduces the number of frivolous or fraudulent claims made against municipalities... . The municipality is protected from stale claims in the same manner as the private sector, that is, by the applicable statute of limitations. There is no good reason for it to enjoy an additional protection.
See also Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845, 850 (1975). The court stated, in part:
[F]ostering negotiation and settlement to reduce the amount of litigation ... is desirable no matter who the parties are. (citation omitted)
[17] Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845, 850 (1975) (citation omitted).
[18] Id. 539 P.2d at 849 (citation omitted). At the time of the death involved in this case, the city of Anchorage carried commercial insurance. According to the brief of the Municipal Attorneys' Association, the Municipality of Anchorage is presently a self-insurer.
[19] See City of Fairbanks v. Schaible, 375 P.2d 201, 206-09 (Alaska 1962), and note 1, supra. See also Ayala v. Philadelphia Bd. of Pub. Educ., 453 Pa. 584, 305 A.2d 877, 882 (1973).
In regard to this aspect of the case, the Hunter court stated:
In light of [the absence of other justifications], the only function the special treatment given governmental bodies seems to perform is the simple protection of the government from liability for its wrongdoing. Our state has clearly and unequivocally abjured any desire to so insulate itself from liability, however, in its absolute waiver of sovereign immunity, which places the government on an equal footing with private parties defendant.
.....
Any policy of placing roadblocks in the way of potential claimants against the state [thus] having been abandoned, we cannot uphold nonclaim statutes simply because they serve to protect the public treasury.
Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845, 850 (1975).
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Order entered September 16, 2013
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01254-CV
No. 05-13-01255-CV
No. 05-13-01256-CV
No. 05-13-01257-CV
IN RE TROY LEE PERKINS, RELATOR
Original Proceeding from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F07-00645-S, F07-71769-S, F07-71970-S, F07-71990-S
ORDER
Based on the Court’s opinion of today’s date, we DISMISS relator’s petition for writ of
mandamus. We ORDER that relator bear the costs of this original proceeding.
/s/ JIM MOSELEY
JUSTICE
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375 F.Supp. 841 (1973)
Dr. Joe F. SCHOOLER
v.
NAVARRO COUNTY MEMORIAL HOSPITAL et al.
Civ. A. 3-6200-B.
United States District Court, N. D. Texas, Dallas Division.
July 19, 1973.
Otto B. Mullinax, Dallas, Tex., for plaintiff.
L. W. Anderson, Dallas, Tex., for defendants.
MEMORANDUM OPINION AND JUDGMENT
HUGHES, District Judge.
Dr. Joe F. Schooler brought this suit against the Navarro County Memorial Hospital, its Administrator and Board of Managers claiming that the Board had violated the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution in denying him admission to the staff of the Navarro County Memorial Hospital.
At a pretrial hearing with both parties represented by counsel the Court ordered the Board to hold a full hearing upon Plaintiff's application, the hearing to conform to due process procedure.
Thereafter a date for a hearing was agreed upon and Dr. Schooler was furnished with a bill of particulars containing the charges of his alleged incompetence. Prior to the hearing numerous written interrogatories and oral depositions were taken bearing on the charges set out in the bill of particulars. Attorneys for both parties propounded written interrogatories and were present and interrogated the witnesses at the oral deposition hearings.
A hearing was held on April 13, 1973, with Dr. Schooler, the Members of the Board, the Administrator and attorneys for both parties present. All depositions and interrogatories were offered in evidence. Dr. Charles Brown, Chief of Staff of the Hospital and Dr. Joe F. Schooler, plaintiff, testified and were examined by both parties. The hearing continued for more than five hours, the *842 witnesses being fully examined by both attorneys.
On April 20, 1973, the Board at its regular monthly meeting denied the application of Dr. Schooler by a vote of four to zero, with one abstention.
The procedure as reflected by this record reflects that the hearing on April 13, 1973, before the Board of Navarro County Memorial Hospital on the admission of Dr. Joe F. Schooler to the staff of the Hospital conformed to due process.
The second question for this Court to decide is whether the Board's decision not to admit Dr. Schooler to the staff was based upon reasonable grounds related to the operation of the hospital.
The Court has examined the pleadings, the transcript before the Board including testimony, depositions, interrogatories and exhibits, and argument of counsel and finds that the evidence before the Board reflects the following:
1. Dr. Schooler failed to obtain credit for his residency at Parkland Hospital and Baylor University College of Medicine when he transferred to New York for his residency.
2. Dr. Schooler was denied staff privileges or reappointment of staff privileges in several hospitals including Harris Hospital, Fort Worth, Texas; John Peter Smith Hospital, Fort Worth, Texas; All Saints Hospital, Fort Worth, Texas; Milford Clinic, Milford, Texas; Tarrant County Hospital District, Arlington, Texas; Hubbard Hospital, Hubbard, Texas; Garland Clinic and Hospital, Garland, Texas.
3. On three occasions Dr. Schooler failed the test to become certified by the American Board of Orthopedic Surgery.
4. After a probationary period of three years, Dr. Schooler was denied membership in the Tarrant County Medical Society. The rejection of his application occurred after a hearing at a meeting of the entire membership. The members voted to sustain the action of the Board of Directors in rejecting his application. Rejection was based on complaints of overcharges, of inability to get along with other physicians and hospital personnel, and of exhibition of temper.
5. After five years on the provisional staff of Harris Hospital Dr. Schooler's application for admission to the permanent staff was rejected on account of complaints of overcharges and of his negative relationship with the staff and hospital personnel.
6. At Hubbard Hospital, Dr. Schooler's staff privileges were revoked after four months. He had numerous disagreements with his patients, the nurses and the Chief of Staff. This was caused by personality difficulties which prevented him from working with hospital personnel. His unstable mental condition, according to reports, was manifested by anger and impatience toward patients, doctors and nurses. The Chief of Staff reported his presence was disruptive.
It is the conclusion of the Court that the refusal of the Board of Navarro County Hospital to admit Dr. Joe F. Schooler to the hospital staff was based on matters reasonably related to his qualifications and the proper operation of the hospital and resulted from its concern for the standard of medical practice and the welfare of patients. There is substantial evidence to support the action taken by the Board.
The Court having found that the hearing before the Board was conducted with procedural due process and that its action was supported by substantial evidence.
It is therefore ordered, adjudged and decreed that the determination of the Board to deny staff privileges to Dr. Schooler be and is hereby affirmed.
Costs of transcript of hearing against Plaintiff with exception of depositions and interrogatories introduced in evidence, costs of these taxed against party incurring the expense.
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59 F.3d 174NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Richard BOWEN, Plaintiff-Appellant,v.Phil ROGERS; Len Smith; John Cook, Joseph McNamara,Defendants-Appellees.
No. 94-15457.
United States Court of Appeals, Ninth Circuit.
Submitted June 6, 1995.*Decided June 12, 1995.
Before: O'SCANNLAIN, LEAVY, and HAWKINS, Circuit Judges.
1
MEMORANDUM**
2
Richard Bowen, a California state prisoner, appeals pro se the district court's dismissal for failure to state a claim of his 42 U.S.C. Sec. 1983 civil rights action against Phil Rogers, Len Smith, John Cook and Joseph McNamara ("defendants") alleging that the defendants violated his Fourth Amendment rights by conducting an illegal search and seizure. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We review de novo, Miller v. Maxwell's Int'l. Inc., 991 F.2d 583, 585 (9th Cir.1993), cert. denied, 114 S.Ct. 1049 (1994), and we affirm.
3
Bowen contends that the district court erred by dismissing his action as time-barred. This contention lacks merit.
4
It is well-settled that federal law determines when a cause of action accrues under section 1983, Elliot v. City of Union City, 25 F.3d 800, 801-02 (9th Cir.1994), and that an action for a Fourth Amendment violation accrues on the date of the illegal search and seizure. See Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir.1983) (per curiam) (stating that where illegal search and seizure is alleged the cause of action accrues when the wrongful act occurs). Here, Bowen's verified complaint alleged that the illegal search and seizure occurred on January 6, 1983. Thus, contrary to Bowen's contention, his cause of action accrued on that date. See Elliot, 25 F.3d at 801-02; Venegas, 704 F.2d at 1146.
5
To the extent that Bowen contends that his action is not time-barred because Cal.Govt.Code Sec. 945.3 tolled the statute of limitations on his action, we reject this contention. Although the statute of limitations on Bowen's action was tolled by Cal.Govt.Code Sec. 945.3 while criminal charges were pending against him, the statute began to run when he was convicted on August 22, 1985. See Cal.Govt.Code Sec. 945.3; McAlpine v. Alameda Co. Superior Court, 257 Cal.Rptr. 32, 33 (1989) (stating that charges are "pending" only until the date of judgment and conviction). Because Bowen filed this action on February 10, 1990, over four years after he was convicted, the district court properly dismissed Bowen's action because it was time-barred. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987); Cal.Govt.Code Sec. 945.3.
6
To the extent that Bowen contends that Cal.Civ.Proc.Code Sec. 352(a)(3) tolled the statute of limitations on his action, we reject this contention. Bowen's complaint alleged that he "was not in state custody when defendants illegal acts took place." Because Cal.Civ.Proc.Code Sec. 352(a)(3) only tolls the statute of limitations if a plaintiff is "[i]mprisoned on a criminal charge" at the time the cause of action accrued, Bowen cannot benefit from this statute.1 See Cal.Civ.Proc.Code Sec. 352(a)(3); Elliot, 25 F.3d at 803.
7
Accordingly, we affirm the district court's dismissal of Bowden's action.2
8
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
Even if Bowen were in custody at the time of the alleged wrongful search and seizure, his subsequent release on bail rendered section 352 inapplicable. See Cal.Civ.Proc. Sec. 352(a)(3); Elliot, 25 F.3d at 803 (holding that actual, uninterrupted incarceration is the touchstone for assessing tolling under section 352(a)(3))
2
We decline to address Bowen's contention that a "discovery rule" operates to save his action because he failed to raise this issue below. See Ferris v. Santa Clara County, 891 F.2d 715, 719 (9th Cir1989). Although Bowen claims that he raised this issue in his opposition to defendants' motion to dismiss, a review of the record reveals that Bowen never filed an opposition motion
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914 F.2d 258
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.PUREX CORPORATION, et al., Plaintiffs-Appellants,v.WILLIS DAY PROPERTIES, INC., et al., Defendants-Appellees.
No. 89-4032.
United States Court of Appeals, Sixth Circuit.
Sept. 11, 1990.
Before KENNEDY, BOGGS and SUHRHEINRICH, Circuit Judges.
1
SUHRHEINRICH, Circuit Judge. This case involves the district court's construction and enforcement of the terms of an oral settlement agreement entered into between the parties on the eve of trial. The underlying litigation arose out of a fire causing property damage to a warehouse and its contents. After conducting an evidentiary hearing on the terms of the settlement agreement, the district court held that the appellants, who owned goods that were destroyed in the warehouse, released "all claims" against the appellees, the warehouse owner and manager. Appellants raise three arguments on appeal. First, appellants contend that the district court relinquished its jurisdiction when, after being informed by the parties that an oral settlement agreement had been reached, the court sua sponte entered an order dismissing the case. Second, appellants argue that their attorneys lacked the requisite authority to enter into a settlement agreement under the terms found to exist by the district court. Third, appellants claim that the district court's findings of fact concerning the terms of the settlement agreement were clearly erroneous. For the reasons stated below, we affirm the district court's order enforcing the oral settlement agreement.
I.
2
On July 7, 1985, a fire destroyed a warehouse, owned by Willis Day Properties, Inc. ("Willis Day") and managed by Able Warehousing & Development Company ("Able"), and the goods contained therein, some of which were owned by Purex Corporation. On the date of the fire, Purex Corporation was wholly owned by, and is now merged with, the named co-plaintiff, Dial Corporation. Plaintiffs Purex Corporation and Dial Corporation (hereinafter collectively referred to as "Purex") sued Willis Day and Able for damages to the goods and for clean-up expenses, allegedly in excess of 4.3 million dollars. Able counterclaimed for the clean-up expenses it incurred, which were allegedly in excess of $10,000.00. Purex has received $3,861,211.00 from its insurer, Underwriters at Lloyds ("Lloyds").1 Willis Day's insurer, Industrial Risk Insurers ("IRI"), has filed a separate suit against Purex for the cost of damages to the real property ("IRI Litigation").
3
On December 6, 1988, one day before the scheduled trial, the attorneys for the respective parties conferred and reached an oral settlement agreement. On December 7, 1988, after being informed that the case had been settled, the district court judge dismissed the case without prejudice and simultaneously granted the parties leave to file settlement stipulations. No settlement stipulations were ever filed. After several months of failed attempts to reduce the agreement to writing, Purex and Able filed cross-motions for judgments to enforce each party's version of the December 6, 1988 settlement agreement. Based upon findings of fact made at a July 21, 1989 evidentiary hearing, the district court ordered Purex to release "all claims" against Willis Day and Able. A clarification of the court's initial order stated that Purex could not pursue contribution or indemnity claims in any pending or future litigation, including but not limited to the IRI litigation, arising from the warehouse fire. Purex now appeals from the order and clarification entered by the district court.
II. DISCUSSION
A. Jurisdiction
4
Purex's initial argument on appeal is that the district court relinquished its jurisdiction when it dismissed the case sua sponte without prejudice, on December 7, 1988. The district court's order reads as follows:
5
Upon consideration, the court having been informed that the above entitled cause of action has been settled between the parties, it is ordered that the docket for this case be marked 'settled and dismissed without prejudice'. Counsel granted leave to file additional settlement stipulations.
6
The narrow issue presented is whether this is a "conditional" or an "unconditional" dismissal order as entered by the district court.
7
It is well settled that "courts retain the inherent power to enforce agreements entered into in settlement of litigation pending before them." Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1371 (6th Cir.), cert. denied, 429 U.S. 862 (1976); All States Investors, Inc., v. Bankers Bond Co., 343 F.2d 618, 624 (6th Cir.) 1, cert. denied, 382 U.S. 830, reh'g denied, 382 U.S. 922 (1965). Further, no specific language is necessary to effect a "conditional" as opposed to an "unconditional" dismissal: "[A]ll that is necessary is that it be possible to infer that [the trial judge] did intend to retain jurisdiction--that he did not dismiss the case outright, thereby relinquishing jurisdiction." McCall-Bey v. Franzen, 777 F.2d 1178, 1188 (7th Cir.1985).
8
A plain reading of the district court's dismissal order indicates that it fully intended to retain jurisdiction over this matter until settlement stipulations were filed by the parties. It is also worth noting that the parties, including Purex, construed the dismissal as "conditional" as evidenced by the motions for enforcement that were filed with the district court approximately four months subsequent to the district court's dismissal order.
9
Purex's reliance on our decision in Hinsdale v. Farmers Nat'l Bank & Trust Co., 823 F.2d 993 (6th Cir.1987) is misplaced. The Hinsdale decision turned on the jurisdictional impact of a concededly "unconditional" dismissal entered by the district court. Id. at 995. Furthermore, the parties in Hinsdale had already signed a settlement stipulation, pursuant to Fed.R.Civ.P. 41(a)(1), at the time of the dismissal. Id. In this case, by contrast, the district court specifically granted the parties leave to file such settlement stipulations at the time of the dismissal.
10
B. Purex's Attorney's Settlement AuthorityPurex claims that the December 6, 1988 settlement agreement cannot be enforced because the attorneys representing Purex lacked the requisite express authority to enter into such an agreement.2 To support this contention, Purex argues that its attorneys were never expressly authorized to settle the litigation under the terms as found to exist by the district court. However, we find nothing in the record which indicates that Purex raised the issue of its attorney's authority to settle this lawsuit in the lower court. There are no facts, nor is there any ruling by the district court, from which this Court can properly review Purex's contention that its attorneys overreached their settlement authority. Accordingly, we hold that Purex did not properly preserve this issue for appeal. Bailey v. Chattem, Inc., 684 F.2d 386 (6th Cir.1982).3
C. Terms Of The Settlement Agreement
11
Purex and Able each filed motions for judgments to enforce the oral settlement agreement. Purex now claims that the terms of the agreement, as decided by the district court, do not reflect the actual agreement reached between the parties. Under Purex's version of the disputed terms, Purex would receive $650,000.00 in return for dismissing the instant lawsuit. Purex would then be able to file a cross-claim for contribution and/or indemnity against Willis Day and Able in the IRI and any other litigation arising out of the fire. Under Willis Day's and Able's version of the disputed terms, which the district court ultimately adopted, Purex would be prevented from seeking contribution or indemnity from Willis Day or Able in any action filed by a third party against Purex for damages resulting from the fire.
12
The standard for review concerning factual disputes in cases such as this is well settled: "Although [the appellate court] may freely review the district court's legal conclusions concerning the existence of an enforceable oral contract, its subsidiary factual determinations must be upheld unless they are clearly erroneous." (footnote omitted). Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 143 (6th Cir.1983). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, reh'g denied, 333 U.S. 869 (1948).
13
At the evidentiary hearing conducted by the district court on July 21, 1989, testimony was introduced from eight attorneys involved in the underlying litigation, seven of whom were present at the settlement conference. Exhibits were offered into evidence and closing arguments were made to the court. The district court specifically found that the testimony of Purex's attorney, Mr. Jellinek, was not convincing. Other attorneys testified that by "release" the parties intended that Willis Day and Able would be completely removed from all litigation concerning the warehouse fire. After a careful review of the record and, specifically, the testimony of the attorneys introduced at the evidentiary hearing, we hold that the district judge's findings of fact were not clearly erroneous.
14
AFFIRMED.
1
Although not a named party in the litigation below, Lloyds attempted to intervene in this appeal, designating itself as a "plaintiff-appellee". Because the Federal Rules of Appellate Procedure do not provide for intervention by a non-party at the appellate level, this Court is left no choice but to refuse intervention and decline consideration of Lloyds' brief
2
Purex also argues that one of the attorneys who negotiated the settlement, Mr. Jellinek, represented Purex's insurance carrier, Lloyds, but did not represent Purex. However, attorneys Jellinek and Ellenburger participated in the action as counsel for the plaintiffs for the initial 15 months of this lawsuit; and this fact is evidenced by their listing on all pleadings as counsel for plaintiffs, Purex and Dial. There was no indication at any critical time during the proceedings before the district court that Jellinek represented Lloyds and not Purex. In fact, Lloyds has never been a named party to this lawsuit
3
In any event, Purex relies on several Ohio cases that discuss the authority of an attorney to make binding agreements on behalf of his client in the context of real estate transactions. See Morr v. Crouch, 19 Ohio St.2d 24, 249 N.E.2d 780 (1969); Ottawa County Comm'rs v. Mitchell, 17 Ohio App.3d 208, 478 N.E.2d 1024 (1984). While these cases apparently require that an attorney have "express" authority to act on behalf of his client in conveying real property, it is less clear whether the more rigorous agency principles found in real estate transactions apply equally to other areas of the attorney-client relationship. See Argo Plastics Products Co. v. City of Cleveland, 15 Ohio St.3d 389, 474 N.E.2d 328, 331 (1984) (if an attorney exceeds his authority or enters into an agreement against the wishes of his client, the client's remedy lies in an action for malpractice, not in an appeal to set aside an otherwise valid settlement agreement); Weir v. Needham, 26 Ohio App.3d 36, 498 N.E.2d 175 (1985); Miller v. Wick Bldg. Co., 154 Ohio St. 93, 93 N.E.2d 467 (1950)
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194 A.2d 65 (1963)
RICE LUMBER COMPANY
v.
Norman C. BASLOW and Isabel L. Baslow Howard National Bank and Trust Co., et al., Trustees.
No. 395.
Supreme Court of Vermont. Chittenden.
July 1, 1963.
Robert K. Bing, Burlington, for plaintiff.
Ezra S. Dike, Bristol, for John A. Kilbourn, Trustee.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
HOLDEN, Justice.
This appeal by the defendants from a judgment of the Chittenden County Court is met by the plaintiff's motion to dismiss. The motion is based on the jurisdictional contention that the statutory time for taking the appeal had expired when the defendants' notice of appeal was filed.
The record before us establishes that judgment for the plaintiff was granted by way of a written judgment order, signed by the judges, and dated February 19, 1963. The order bears the imprint"CHITTENDEN COUNTY COURTFiled 2/20/63" over the signature of the County Clerk.
The notice of appeal of the principal defendants was signed by their attorney and was dated February 21, 1963. The instrument bears the imprint"CHITTENDEN COUNTY COURTFiled 3/22/63" and is signed by the County Clerk.
The method and time for perfecting appeals is governed by the provisions of 12 V.S.A. § 2383, as amended by the Acts of 1961 No. 182, section 2:
"Except as provided below, a notice of appeal shall be filed within thirty days from the date of the entry of any appealable judgment, order, ruling, decree or sentence of any tribunal set *66 forth in section 2381 of this title. Immediately upon the entry of the judgment, order, ruling, decree or sentence the clerk of the court, register or commission shall mail or deliver by hand to every party affected thereby who is not in default for failure to appear, or his attorney of record, notice of such entry. Failure of the clerk, register or commission to do so within one week from the date of entry shall extend the time for filing the notice of appeal to thirty days from the date of receipt of notice of the entry for any party affected by such failure who is not in default for failure to appear. Filing of the notice of appeal shall consist of delivery by hand or by mailing the notice of appeal as specified in section 2382 of this title. In addition, sufficient copies of the notice of appeal shall be furnished to the clerk of the tribunal appealed from, who shall mail a copy to each of the parties named above and to the clerk of the court appealed to, who in the case of the supreme court shall be the clerk of the general term. Failure to provide such copies shall be grounds for imposition of terms but shall not affect the validity of the appeal."
The several county courts are within the specification of 12 V.S.A. § 2381. In computing the thirty day period prescribed above, the date when the judgment was entered is not included. 12 V.S.A. § 251.
The plaintiff's motion to dismiss regards the date of entry of the judgment order as the day when that order was signed by a majority of the judges of the county court. This interpretation of the statute would start the appeal time running on the day following the court's decision of February 19th, and the time for taking the appeal would have expired on March 21, 1963.
This construction ignores the distinction between the rendition of a judgment and the entry of the judgment in the official record of the court. The first is the judicial act of the court; the second is the ministerial act of the clerk in recording what has been adjudicated. In re Estate of Moody, 115 Vt. 1, 13, 49 A.2d 562.
The statute fixes the starting point of the appeal period from the date the judgment is recorded rather than from the date the decision is reached. Computing the appeal time "from the date of the entryof judgment" the defendants had through March 22, 1963 in which to perfect their appeal. Since it appears from the record that the notice of appeal was filed the last day before time had expired, the motion to dismiss is denied.
This disposition of the motion to dismiss is reached without reference to the date when the clerk of the Chittenden County Court delivered by hand or mailed the copies of the order from which the appeal is taken. Nor does it appear whether the defendants' notice of appeal was delivered by hand or mailed. The record is deficient in these respects but the shortage is not critical in this instance. Although the exact date of delivery or mailing is not known, the fact that the judgment was entered and notice of appeal "filed" within a sequence of thirty days is enough to establish appellate jurisdiction.
We deem it important, however, to stress the point that under the new statute, a longer time interval might prevail. In such circumstances, the date when the clerk mails or delivers copies of the judgment order and the date when the appellant mails or delivers his notice of appeal, may constitute essential jurisdictional facts, and thereby control the authority for appellate review. For these reasons, the record on appeal should clearly and definitely indicate the time of these events.
Plaintiff's motion to dismiss the appeal is denied.
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Court of Appeals, State of Michigan
ORDER
Michael J. Talbot, Chief Judge, acting under MCR 7.21 l(E)(2), orders:
The opinions in the following appeals are hereby AMENDED to correct a clerical error in the
date of issuance. The date on the opinions is corrected to read April 10, 2018 .
334631 People of MI v Maurice Larnell Glover
335396 People of MI v Robert Daren Hale
336245 People of MI v Toriono Kent
336893 Goldcorp Inc v Varoujan M Basmajian
337595 Jeffery Beck v Alpine Shredders Limited
337951 Teddy 23 LLC v Department of Treasury
In all other respects, the opinions remain unchanged.
A true copy entered and certified by Jerome W. Zimmer Jr. , Chief Clerk, on
APR 1 D 2018
Date
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 9, 2018
Plaintiff-Appellee,
v No. 335396
Oakland Circuit Court
ROBERT DAREN HALE, LC No. 2015-256959-FC
Defendant-Appellant.
Before: SERVITTO, P.J., and MARKEY and O’CONNELL, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of second-degree murder, MCL
750.317; operating under the influence causing death, MCL 257.625(4); operating while license
suspended, revoked, or denied causing death, MCL 257.904(4); receiving or concealing stolen
property (motor vehicle),1 MCL 750.535(7); and failure to stop at the scene of an accident
resulting in death, MCL 257.617. The trial court sentenced defendant, as a fourth habitual
offender, MCL 769.12, to concurrent terms of 53 to 80 years’ imprisonment for second-degree
murder, 19 to 50 years’ imprisonment for operating under the influence causing death, 19 to 50
years’ imprisonment for operating while license suspended, revoked, or denied causing death, 6
to 30 years’ imprisonment for receiving or concealing stolen property, and 6 to 30 years’
imprisonment for failure to stop at the scene of an accident resulting in death. We affirm.
I. FACTS
Shortly after 7:00 a.m. on September 13, 2015, defendant was driving a white truck that
had been stolen the evening before. He proceeded southbound on Woodward Avenue at a high
rate of speed and ran a red light at an intersection, striking a vehicle driven by Peter Whittaker.
Whittaker was killed instantly. Defendant ran from the scene and was followed by a witness
who saw him get into a silver car driven by another man. Defendant was later located and
arrested. A crack pipe was found in the truck defendant was driving at the time of the accident.
A blood draw performed on defendant approximately three hours after the accident showed
1
Defendant pleaded no contest to receiving or concealing a stolen motor vehicle on the first day
of trial.
-1-
cocaine in his system. Defendant moved to suppress the results of his blood test results, but the
trial court denied the motion.
II. SUPPRESSION OF BLOOD DRAW RESULTS
On appeal, defendant first argues that the trial court erred when it denied his motion to
suppress the results of his blood draw because the affidavit for the search warrant was
insufficient. We disagree.
This Court reviews a trial court’s ruling at a suppression hearing de novo. People v
Galloway, 259 Mich App 634, 638; 675 NW2d 883 (2003). We review the trial court’s findings
of fact for clear error. Id. “A finding is clearly erroneous if, after reviewing the entire record, an
appellate court is left with a definite and firm conviction that a mistake has been made.” Id.
The United States Constitution provides that “no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.” US Const, Am IV. The Michigan Constitution also
provides, “No warrant to search any place or to seize any person or things shall issue without
describing them, nor without probable cause, supported by oath or affirmation.” Const 1963, art
1, § 11.
A magistrate may only issue a search warrant when “ ‘there is a fair probability that
contraband or evidence of a crime will be found in a particular place.’ ” People v Franklin, 500
Mich 92, 100; 894 NW2d 561 (2017), quoting Illinois v Gates, 462 US 213, 238; 103 S Ct 2317;
76 L Ed 2d 527 (1983). This Court reviews a magistrate’s decision to issue a search warrant by
asking “whether a reasonably cautious person could have concluded that there was a ‘substantial
basis’ for the finding of probable cause.” People v Russo, 439 Mich 584, 603; 487 NW2d 698
(1992). “A magistrate’s finding of probable cause and his or her decision to issue a search
warrant should be given great deference and only disturbed in limited circumstances.” Franklin,
500 Mich at 101. However, there are “ ‘exceptional circumstances’ ” when a magistrate’s search
warrant may be dispensed with, such as, when a search warrant is defective because it is
insufficient. Id. at 101-102 (citation omitted).
When a trial court determines that a defendant has established a “substantial preliminary
showing of a deliberate falsehood or reckless disregard for the truth by the affiant” in the search
warrant affidavit, and the allegedly false statement was necessary to a finding of probable cause,
the trial court holds an evidentiary hearing pursuant to Franks v Delaware, 438 US 154; 98 S Ct
2674; 57 L Ed 2d 667 (1978). Franklin, 500 Mich at 94-95. This same standard is used to
determine whether a search warrant is invalid. Id. at 104. “On this same basis, the defendant
may then be entitled to have the warrant voided (when the deliberate falsehood or reckless
disregard for the truth is established by a ‘preponderance of the evidence’ and the affidavit’s
remaining content is insufficient to establish probable cause).” Id. at 104 (citation omitted).
This Court focuses on the facts and circumstances supporting the magistrate’s
determination of probable cause when reviewing the issuance of a search warrant. People v
Martin, 271 Mich App 280, 298; 721 NW2d 815 (2006). The affidavit for the search warrant
must include facts that are within the affiant’s knowledge, rather than mere conclusions or
-2-
beliefs. Id. “The affiant may not draw his or her own inferences, but rather must state matters
that justify the drawing of them.” Id. It is presumed that affidavits supporting search warrants
are valid. People v Mullen, 282 Mich App 14, 23; 762 NW2d 170 (2008). When reviewing an
affidavit, this Court must read it in a “ ‘common sense and realistic manner,’ not a crabbed or
hypertechnical manner.” Id. at 27 (citation omitted).
Generally, unconstitutionally seized evidence must be excluded from trial. People v
Dillon, 296 Mich App 506, 508; 822 NW2d 611 (2012). “ ‘Exclusion of improperly obtained
evidence serves as a deterrent to police misconduct, protects the right to privacy, and preserves
judicial integrity.’ ” People v Hyde, 285 Mich App 428, 439; 775 NW2d 833 (2009), quoting
People v Brown, 279 Mich App 116, 127; 755 NW2d 664 (2008). However, when police act
“within the scope of, and in objective, good-faith reliance, on a search warrant obtained from a
judge or magistrate,” evidence seized pursuant to a warrant lacking probable cause is not
suppressed. People v Goldston, 470 Mich 523, 530; 682 NW2d 479 (2004). Whether the police
acted in good faith is determined by a standard of objective reasonableness. United States v
Leon, 468 US 897, 922; 104 S Ct 3405; 82 L Ed 2d 677 (1984). The exclusionary rule is applied
on a case-by-case basis and when it would deter police misconduct. Goldston, 470 Mich at 531.
If the issuing magistrate “is misled by information in the affidavit that the affiant either knew
was false or would have known was false except for his reckless disregard fof the truth,” the
evidence must be suppressed. Id.
First and foremost, we agree with the trial court that the search warrant was factually
unsupported on the element of “under the influence.” There was, indeed, a wholesale absence of
factual support for that element in the affidavit. Nevertheless, there has been no allegation that
the police did not act “within the scope of, and in objective, good-faith reliance” on the search
warrant obtained from the magistrate,” such that the evidence seized pursuant to the warrant
lacking probable cause is not suppressed. Goldston, 470 Mich 530. Moreover, defendant has
based his suppression argument on a claim that the search warrant was insufficient because some
of the statements included therein were inaccurate and misleading. The statements in the
affidavit that defendant challenges on appeal are:
Lameka Thomas informed affiant that she personally observed said subject
[indiscernible] [i]nvolved in traffic crash and run on feet E/B [sic: eastbound]
towards Sanford and then N/B [sic: northbound] through yards before losing sight
of them [sic][.]
[Defendant] was subsequently identified by witness who picked him out.
The first sentence is handwritten by Deputy Matthew Steele on the lines provided in the affidavit
form. The second sentence is handwritten beneath these lines. The second sentence originally
read, “[defendant] was subsequently identified by witness who picked him up,” and the
magistrate crossed out “up,” and typed in “out,” in the revised version of the affidavit that she
signed. Deputy Steele initialed this change.
Thomas testified at the Franks hearing that she saw defendant get out of the white truck
and start running, and then she lost sight of him as he ran in between houses. Deputy Steele
testified that he included the first sentence noted above in the affidavit based on this information
-3-
provided by Thomas. There is no inaccuracy in this statement based on the testimony at the
Franks hearing.
Deputy Steele testified at the Franks hearing that he learned from the Waterford Police
Department that defendant’s brother, Victor Hale, was the owner of the silver car that picked
defendant up from near the accident scene, and defendant’s brother gave the other officers the
address where defendant was located. Deputy Steele initially wrote the second challenged
sentence as “[defendant] was subsequently identified by witness who picked him up,” based on
the information he obtained from the Waterford Police Department, who learned this information
from defendant’s brother. The sentence as it was originally written by Deputy Steele is also
supported by his testimony at the Franks hearing, although it is not clear from the face of the
affidavit that “witness” in the second statement refers to defendant’s brother, rather than
Thomas. Deputy Steele testified that the magistrate changed “up” to “out” in the sentence “for
clarification,” but he did not recall the substance of their conversation related to this change. It is
not clear why the magistrate made this change as it actually confuses the matter rather than
providing clarification.
The trial court concluded that although it was not clear from the face of the affidavit that
information was drawn from two witnesses rather than all information being taken from Thomas,
there was still “no evidence of willful omission or crafty circumvention.” As the trial court
explained, Deputy Steele was “compacting” the identities of Thomas and defendant’s brother,
and should have included a “transitional phrase to apprise the reader” that the information in the
first sentence was provided by Thomas, and the information in the second sentence was provided
by defendant’s brother. The trial court characterized Deputy Steele’s actions as “hasty,” but not
knowingly false or in reckless disregard of the truth. We agree with the trial court’s analysis.
The evidence does not demonstrate that Deputy Steele included a deliberate falsehood in
the affidavit or acted in reckless disregard for the truth. Franklin, 500 Mich at 94-95. He
testified that the first challenged sentence of the affidavit was based on information provided by
Thomas, and the second challenged sentence was based on the identification of defendant by
defendant’s brother to the Waterford police. When reading these sentences separately, and in a
commonsense rather than a hypertechnical way, Deputy Steele’s explanation of the information
is clear. When read separately, the sentences do not necessarily establish that “witness” in the
second sentence refers to Thomas. The trial court found that Deputy Steele’s testimony was
honest and not ill-motivated. This Court gives deference to the trial court’s determination
regarding witness credibility. Galloway, 259 Mich App at 638. Because there is no evidence of
deliberate falsehood or reckless disregard for the truth, the trial court did not err in finding that
the exclusionary rule applied to permit admission of defendant’s blood test results, despite the
affidavit’s failure to establish probable cause related to the intoxication elements of defendant’s
charged offenses. There is no indication in the record why the discovery of the crack pipe in the
white truck driven by defendant at the scene of the accident was not included in the affidavit.
Exclusion of the blood test results, however, would not serve the purpose of deterring police
misconduct, as Deputy Steele acted in haste, but not in bad faith.
-4-
III. PRIOR BAD ACTS EVIDENCE
Next, defendant argues on appeal that the trial court committed error requiring reversal
when it allowed the admission of evidence concerning an August 28, 2015 traffic stop involving
defendant, because it was propensity evidence that directly led to defendant’s convictions of
second-degree murder and operating under the influence causing death. The prosecution had
moved to admit “other acts” of defendant that had occurred on August 28, 2015, pursuant to
MRE 404(b). The trial court determined that only certain of the proposed evidence would be
admitted, and entered an order to that effect:
1) The People are allowed to elicit testimony that the defendant’s driver’s license
was suspended on August 28, 2015[,] and police officers told the defendant [that]
his license was suspended.
2) The People are allowed to elicit testimony that police officers found drug
paraphernalia in the defendant’s vehicle. This evidence is admissible to Count [2]
[operating under the influence causing death] only.
At trial, defense counsel orally moved for reconsideration regarding this order, but the trial court
denied reconsideration.
It is within the trial court’s discretion whether to admit evidence, and this Court will only
reverse a trial court’s decision on such an issue where there has been a clear abuse of discretion.
People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998). An abuse of discretion occurs
when the trial court’s decision falls “ ‘outside the range of principled outcomes.’ ” People v
Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010), quoting People v Smith, 482 Mich 292, 300;
754 NW2d 284 (2008). A trial court’s decision to grant or deny a motion for reconsideration is
also reviewed for an abuse of discretion. People v Walters, 266 Mich App 341, 350; 700 NW2d
424 (2005).
MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
The following factors must be present for the trial court to admit other acts evidence:
First, the prosecutor must offer the “prior bad acts” evidence under something
other than a character or propensity theory. Second, “the evidence must be
relevant under MRE 402, as enforced through MRE 104(b)[.]” Third, the
probative value of the evidence must not be substantially outweighed by unfair
prejudice under MRE 403. Finally, the trial court, upon request, may provide a
limiting instruction under MRE 105. [People v Knox, 469 Mich 502, 509; 674
-5-
NW2d 366 (2004), quoting People v VanderVliet, 444 Mich 52, 74-75; 508
NW2d 114 (1993), amended 445 Mich 1205 (1994).]
The prosecution has the burden of establishing the relevance of the prior act evidence to prove a
fact within one of the exceptions to the general exclusionary rule of MRE 404(b). Knox, 469
Mich at 509. “ ‘Relevance is a relationship between the evidence and a material fact at issue that
must be demonstrated by reasonable inferences that make a material fact at issue more probable
or less probable than it would be without the evidence.’ ” Id., quoting Crawford, 458 Mich at
387. If the only relevance of the prior acts evidence demonstrates the defendant’s character or
propensity to commit the crime, the evidence cannot be admitted. Knox, 469 Mich at 510.
The prosecution argues that it did not offer the prior bad acts evidence under a character
or propensity theory, but rather, that the evidence demonstrated defendant’s knowledge that his
license was suspended, his identity as the driver of the white truck, and lack of mistake. These
are proper purposes for admission pursuant to MRE 404(b).
Regarding relevancy, MRE 402 provides that “[a]ll relevant evidence is admissible,”
unless it is otherwise deemed inadmissible. “Relevance is a relationship between the evidence
and a material fact at issue that must be demonstrated by reasonable inferences that make a
material fact at issue more probable or less probable than it would be without the evidence.”
Crawford, 458 Mich at 387. The prosecution asserts that the traffic stop evidence was relevant
because defendant pleaded not guilty, and therefore, the prosecution had to prove all elements of
the offenses, including identity, knowledge, and lack of mistake and here, the prosecution had to
prove that defendant was the driver of the white pickup truck, and that defendant had knowledge
that his license was suspended, on September 13, 2015. It is unclear, however, how the traffic
stop evidence is relevant to the issues of identity, knowledge, and lack of mistake pursuant to
MRE 402.
There is no doubt that defendant drove the white pickup truck, hit Whittaker’s vehicle
resulting in Whittaker’s death, and fled the scene. Several witnesses identified him, and defense
counsel stipulated at trial that defendant was the responsible driver. Similarly, defense counsel
stipulated that defendant’s driver’s license was suspended, and that he was aware of this fact.
Testimony related to a search of defendant’s license and prior notice from the Secretary of State
was also admitted at trial. Although evidence that defendant was pulled over in August 2015
while driving on a suspended license with drug paraphernalia in his car may demonstrate lack of
mistake because defendant drove on a suspended license with drug paraphernalia in his car two
weeks later, all of the other evidence in the record undoubtedly demonstrated defendant’s guilt
on these issues. The prior traffic stop evidence was simply irrelevant.
The evidence also was of limited probative value. The prosecution was required to
demonstrate that the probative value of the prior acts evidence was not substantially outweighed
by the danger of unfair prejudice under MRE 403. Knox, 469 Mich at 509, quoting VanderVliet,
444 Mich at 74-75. MRE 403 provides:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
-6-
issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.
The trial court noted that the traffic stop prior acts evidence was “not rendered inadmissible from
an analysis of [MRE] 403.” The trial court did not expand further on its reasoning. Based on a
review of the record, the evidence of the August 28, 2015 traffic stop was not highly probative of
defendant’s involvement in the charged crimes. It demonstrated defendant’s involvement in
prior instances of driving while his license was suspended, and driving under the influence of a
controlled substance. As argued by defendant, this appears to be propensity evidence that
defendant is a bad man who drives under the influence of narcotics, which, is unfairly prejudicial
to defendant. Moreover, in terms of identity and knowledge of driving on a suspended license, it
was cumulative evidence. Defendant’s identity was established by witness identification, as well
as matching the clothing that defendant was wearing to the clothing found in the garbage bag at
Boal’s house, and the clothing worn by defendant in the surveillance footage. Thus, the
prosecution did not establish that the probative value of the traffic stop evidence substantially
outweighed the danger of unfair prejudice.
The admission of the traffic stop evidence, however, was limited by several jury
instructions and, therefore, was harmless error. Before Officer Michael Harris testified, the court
told the jury:
As to the August [28], 2015, evidence, you may only think about whether this
evidence tends to show that the [d]efendant had knowledge that his operator’s
license was suspended on September 13, 2015, or that the [d]efendant knowingly
possessed or used drug paraphernalia on September 13, 2015.
Officer Harris testified that he performed a traffic stop of defendant on August 28, 2015, a LEIN
search indicated that defendant’s license was suspended, Officer Harris informed defendant that
his license was suspended, and a crack pipe and white residue were found in the car. During the
final jury instructions, the court modified the jury instruction according to defense counsel’s
requests, and read the following version to the jury:
You have heard evidence that was introduced to show the [d]efendant
committed other acts on August 28, 2015, for which he is not on trial.
If you believe this evidence, you must be very careful only to consider it
for Counts 2 and 3 only. A couple of “onlys” there.
* * *
As to the August [28], 2015, evidence, you may only think about whether
this evidence tends to show that the [d]efendant had knowledge that his operator’s
license was suspended on September 13, 2015, or that the [d]efendant knowingly
possessed drug paraphernalia on September 13, 2015. You must not consider this
evidence for any other purpose. For example, you must not decide that it shows
that the [d]efendant is a bad person or that he is likely to commit crimes. You
must not convict the [d]efendant here because you think he is guilty of other bad
-7-
conduct. All the evidence must convince you beyond a reasonable doubt that the
[d]efendant committed the alleged crimes or you must find him not guilty.
Thus, it is clear that the trial court took many efforts and appeased defense counsel’s requests to
provide proper limiting instructions to the jury regarding the other acts evidence. It is presumed
that jurors follow their instructions. People v Abraham, 256 Mich App 265, 279; 662 NW2d 836
(2003).
Defendant argues on appeal that the admission of this evidence directly led to his
convictions for second-degree murder and operating while intoxicated causing death. Defendant
does not, however, explain how this evidence directly led to his second-degree murder
conviction when the jury was allowed to consider the other acts evidence for Count 2, operating
under the influence causing death, pursuant to the trial court’s original order and the limiting
instructions. And, the evidence presented at trial overwhelmingly supported defendant’s guilt.
Therefore, although the prosecution did not meet its burdens in admitting the traffic stop
evidence pursuant to MRE 404(b), its admission was harmless error as there was substantial
other evidence on which to convict defendant.
IV. SENTENCING
Lastly, defendant argues on appeal that his sentence for second-degree murder was
unreasonable, disproportionate, and cruel and/or unusual punishment. We disagree.
This Court reviews a sentence that was imposed pursuant to the sentencing guidelines to
determine whether the sentence is reasonable. People v Lockridge, 498 Mich 358, 365; 870
NW2d 502 (2015). A sentence is reasonable if it is proportionate to the seriousness of the
circumstances of the offense and the offender. People v Steanhouse, 500 Mich 453, 475; 902
NW2d 327 (2017). The “key test” of a reasonable sentence “is whether the sentence is
proportionate to the seriousness of the matter, not whether it departs from or adheres to the
guidelines’ recommended range.” People v Milbourn, 435 Mich 630, 661; 461 NW2d 1 (1990),
abrogation recognized by Steanhouse, 500 Mich at 459-460. This Court reviews the trial court’s
determination of a reasonable sentence for an abuse of discretion. Steanhouse, 500 Mich at 471.
Because defendant failed to preserve his claim by objecting to his sentence as cruel
and/or unusual punishment, this Court reviews defendant’s constitutional challenge for plain
error affecting defendant’s substantial rights. People v Henry (After Remand), 305 Mich App
127, 152; 854 NW2d 114 (2014). “To avoid forfeiture under the plain error rule, three
requirements must be met[:] (1) an error must have occurred; (2) the error was plain; (3) and the
plain error affected substantial rights, i.e., the defendant was prejudiced (the defendant generally
must show that the error affected the outcome of the lower court proceedings).” People v
Barber, 255 Mich App 288, 296; 659 NW2d 674 (2003). “Reversal is warranted only when the
plain, forfeited error resulted in the conviction of an actually innocent defendant or when the
error seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Id.
Defendant was sentenced as a fourth habitual offender, which requires a 25-year
minimum sentence. MCL 769.12(1)(a). For second-degree murder, the sentencing guidelines
range was calculated at 365 to 1200 months or life imprisonment. The minimum sentence is
-8-
approximately 30 years and 5 months’ imprisonment. Defense counsel requested a sentence of
25 years’ imprisonment according to the 25-year minimum required as a fourth habitual
offender. The prosecutor asserted that the guidelines were proportional. Defendant was
sentenced to 53 to 80 years’ imprisonment for second-degree murder. Defendant does not
challenge on appeal the sentences he received for his four other convictions. Defendant argues
that his sentence for second-degree murder was unreasonable and disproportionate because it
was much higher than the 25-year minimum required as a fourth habitual offender. Defendant’s
sentence, however, was not a departure sentence. Defendant’s minimum sentence of 53 years’
imprisonment for second-degree murder falls within the sentencing guidelines range of 365 to
1200 months. “[A] sentence within the guidelines range is presumptively proportionate.”
People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008). Therefore, defendant’s
sentence for second-degree murder was not disproportionate or unreasonable.
Defendant also argues that his sentence for second-degree murder constitutes cruel and/or
unusual punishment. The Michigan Constitution prohibits cruel or unusual punishment. Const
1963, art 1, § 16. The United States Constitution prohibits cruel and unusual punishment. US
Const, Am VIII. “In deciding if punishment is cruel or unusual, this Court looks to the gravity of
the offense and the harshness of the penalty, comparing the punishment to the penalty imposed
for other crimes in this state, as well as the penalty imposed for the same crime in other states.”
People v Bowling, 299 Mich App 552, 557-558; 830 NW2d 800 (2013). As noted above,
defendant’s minimum sentence of 53 years’ imprisonment for second-degree murder is not a
departure from the guidelines range of 365 to 1200 months. “A sentence within the guidelines
range is presumptively proportionate, and a proportionate sentence is not cruel or unusual.”
Bowling, 299 Mich App at 558. To overcome the presumption that a sentence is proportionate,
the defendant “must present unusual circumstances that would render the presumptively
proportionate sentence disproportionate.” Id., quoting People v Lee, 243 Mich App 163, 187;
622 NW2d 71 (2000).
Defendant has not overcome the presumption of proportionality. Defendant merely
argues on appeal that his sentence as a fourth habitual offender is disproportionate because it
does not meet the proportionality standard set forth in Milbourn. “[A]n appellant may not simply
announce a position or assert an error and then leave it up to this Court to discover and
rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then
search for authority either to sustain or reject his position.” Bowling, 299 Mich App at 559-560.
Defendant simply asserts that the 25-year minimum would have been proportionate, and notes
his age at the time of sentencing (43 years old). Defendant’s arguments and reasons do not
constitute an “unusual circumstance” sufficient to overcome the presumption of proportionality.
Id. at 558. Rather, the record is clear that defendant was a fourth habitual offender, he had 17
prior felonies and 20 prior misdemeanors, he was on parole at the time of the accident, and the
evidence demonstrated that he was driving at excessive speeds under the influence of cocaine
when he ran a red light and collided with another vehicle, resulting in the victim’s death.
-9-
“Because defendant has not overcome the presumption of proportionality, and because a
proportionate sentence is not cruel or unusual, defendant has not established a constitutional
violation.” Powell, 278 Mich App at 324. Accordingly, the trial court properly sentenced
defendant to 53 to 80 years’ imprisonment for second-degree murder.
Affirmed.
/s/ Deborah A. Servitto
/s/ Jane E. Markey
/s/ Peter D. O'Connell
-10-
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40 F.3d 32
40 Fed. R. Evid. Serv. 1044
UNITED STATES of America, Appellee,v.Amadou DIALLO, also known as Amadou Bailo Diallo, Defendant-Appellant.
No. 74, Docket 93-1864.
United States Court of Appeals,Second Circuit.
Argued Sept. 22, 1994.Decided Nov. 16, 1994.
Mark S. Cohen, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., E.D.N.Y., David C. James, Asst. U.S. Atty., of counsel), for appellee.
David A. Lewis, New York City (The Legal Aid Soc., Federal Defender Div. Appeals Bureau, New York City, of counsel), for defendant-appellant.
Before: VAN GRAAFEILAND, MINER and McLAUGHLIN, Circuit Judges.
McLAUGHLIN, Circuit Judge:
1
Defendant Amadou Diallo appeals from a judgment of the United States District Court for the Eastern District of New York (Nicholas Tsoucalas, Judge, sitting by designation) convicting him, after a jury trial, of importing heroin into the United States in violation of 21 U.S.C. Sec. 952(a), and possessing heroin with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Diallo arrived at J.F.K. International Airport in New York with fifty-eight heroin-filled condoms in his garment bag and forty more heroin-filled condoms in his digestive tract. His defense was that he thought he was smuggling gold dust, not heroin.
2
On appeal, Diallo argues that the district court committed reversible error by excluding expert testimony of a commodities analyst, who would have testified about the economic motivation for smuggling gold dust. He also contends that the prosecutor's misconduct during summation deprived him of a fair trial. We hold that it was reversible error to exclude the expert testimony. Accordingly, we do not reach Diallo's second claim of error, and we reverse and remand for a new trial.
BACKGROUND
3
Amadou Diallo arrived at Kennedy Airport on a flight from Benin, Africa. A customs official noticed that Diallo appeared nervous, and asked him to open his garment bag. Inside were fifty condoms filled with powder. They smelled of excrement and vomit, suggesting that Diallo had swallowed the condoms. The official then escorted Diallo to a search room where he discovered another eight condoms in Diallo's bag. After a field test showed that the condoms contained heroin, Diallo was arrested and x-rayed. The x-ray revealed foreign bodies in Diallo's digestive track. Diallo eventually passed forty more condoms, for a total of ninety-eight condoms filled with heroin.
4
Diallo was indicted for importing heroin into the United States in violation of 21 U.S.C. Sec. 952(a), and for possessing heroin with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). At trial, the customs official recounted the events leading to Diallo's arrest. In addition, a chemist for the Drug Enforcement Administration ("DEA") testified that the condoms contained a total of 501.4 grams of 84% pure heroin. Another DEA expert testified that the wholesale value of the heroin was $70,000-$85,000, and that possession of 501 grams of heroin was consistent with distribution, rather than personal use.
5
In his defense, Diallo testified that he believed he was smuggling gold dust, not heroin. According to Diallo, he had flown to Benin on business, where he met a trader in gold and African art. Diallo testified that the trader paid him $1,000 to smuggle gold dust out of Benin.
6
To buttress his story, Diallo sought to call Jeffrey Christian, a commodities consultant. Based upon his review of Benin's gold export regulations, which he obtained in preparation for Diallo's trial, Christian would have testified, as an expert, that smuggling gold from Benin was more profitable than exporting it legally by complying with Benin's gold export regulations. By way of qualification, Diallo showed that Christian's firm compiled statistics on the world trade in precious metals. Moreover, Christian had advised several African nations on their precious metals export policies.
7
Upon objection, the district court excluded the proffered testimony. The court challenged Christian's qualifications, noting that Christian had no knowledge of Benin's export regulations before being approached to testify and had never even been to Benin. The court also questioned the need for and relevance of the proffered testimony.
8
The jury found Diallo guilty, and the district court sentenced him to 70 months' imprisonment. Diallo now appeals.
DISCUSSION
9
United States v. Onumonu, 967 F.2d 782 (2d Cir.1992), is squarely on point. There, the defendant, who was charged with smuggling heroin, claimed that he believed the condoms he had swallowed contained diamonds, not heroin. Id. at 784. He sought to introduce the expert testimony of a gemologist, who would have testified about the feasibility and economic motivation for smuggling diamonds by swallowing condoms containing them. The district court excluded the testimony, however, finding that it was neither relevant nor helpful to the jury.
10
This Court reversed. We held that the gemologist's testimony was relevant and would have helped the jury to determine a fact in issue: the likelihood that the defendant really believed he had swallowed condoms containing diamonds, not heroin. Id. at 786-88 (citing Fed.R.Evid. 401, 702); see id. at 788 ("[T]he average New York juror knows little about ... smuggling diamonds" and "the feasibility and profitability of smuggling diamonds in the alimentary canal."). We concluded that the failure to admit the expert testimony was an abuse of discretion, depriving the defendant "of a fair opportunity to present his case to the jury." Id. at 789.
11
Here, at oral argument, the government conceded that Christian's proffered testimony was relevant under Onumonu and would have helped the jury to ascertain Diallo's true state of mind. That leaves only the question of Christian's qualifications, and the government contends that because he was not qualified as an expert, his proposed expert testimony was properly excluded. We disagree.
12
District courts are accorded considerable discretion to determine an expert's qualifications. See Fed.R.Evid. 104(a); United States v. Roldan-Zapata, 916 F.2d 795, 805 (2d Cir.1990), cert. denied, 499 U.S. 940, 111 S.Ct. 1397, 113 L.Ed.2d 453 (1991). "Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony." United States v. Lewis, 954 F.2d 1386, 1390 (7th Cir.1992) (internal quotation marks and citation omitted). A district court's conclusion that an expert is not qualified to testify will be affirmed unless manifestly erroneous. Roldan-Zapata, 916 F.2d at 805.
13
Although Christian had never been in Benin itself, he had advised neighboring African countries about their gold export policies. In so doing, he relied on the same type of information he had in this case--the countries' gold export regulations. With this knowledge, he was able to evaluate the effect Benin's regulations had on exporting gold from Benin. Cf. Fed.R.Evid. 703 (expert's testimony must be based on information "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject").
14
Significantly, the government does not challenge Christian's knowledge of the market price of gold and the profits to be made in trading it. Although Christian was not a gold exporter or trader, he was a commodities analyst, specializing in precious metals, and his consulting company tracked the flow of precious metals around the world. Relying on his expertise in precious metals, Christian could have testified about the market price of gold in the United States and the profit to be made by smuggling gold out of Benin. We therefore hold that the district court erred in not finding Christian qualified as an expert witness.
15
That said, we must review for harmless error, determining whether the error affected Diallo's substantial rights. See Fed.R.Crim.P. 52(a) ("Any error ... which does not affect substantial rights shall be disregarded."). If the exclusion of Christian's testimony deprived Diallo of a fair opportunity to present his case to the jury, then the error had a substantial effect on the jury's verdict, and we are compelled to reverse and remand for a new trial. Onumonu, 967 F.2d at 789.
16
To convict Diallo of the crimes with which he was charged, the government had to prove that he knew he was swallowing condoms filled with heroin. Just as in Onumonu, "the critical fact in issue ... was whether [Diallo] actually believed that [gold dust], rather than narcotics, w[as] inside the condoms." Id. at 787. Without Christian's testimony, Diallo had only his own testimony to support his defense: a stranger in a strange land approached him and paid him to swallow condoms filled with gold dust. Under Onumonu, excluding Christian's testimony deprived Diallo "of a fair opportunity to present his case to the jury[,] was not harmless error, and had a substantial effect on the jury's verdict." Id. at 789.
17
It is noteworthy that the government was permitted to call its own expert (a DEA agent) to establish an economic motive for Diallo to smuggle heroin. Diallo's expert (a commodities analyst), in turn, would have shown an economic motive to smuggle gold. Having allowed the government to call as an expert a DEA agent, who was surely no more qualified as an expert in heroin than Christian was in gold, the district court should have accorded the defendant the same right. Turnabout is fair play, even in the federal courts.
CONCLUSION
18
We therefore reverse the judgment of conviction and remand for a new trial. We do not reach Diallo's remaining claim of error.
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17 A.3d 1286 (2011)
COMMONWEALTH of Pennsylvania, Appellee
v.
Leonard F. STOSSEL, Appellant.
No. 1056 WDA 2010.
Superior Court of Pennsylvania.
Submitted February 14, 2011.
Filed April 12, 2011.
*1287 Leonard Stossel, appellant, pro se.
Richard A. Consiglio, Assistant District Attorney, Hollidaysburg, and William R. Stoycos, Office of the Attorney General, Harrisburg, for Commonwealth, appellee.
BEFORE: BENDER, SHOGAN and OTT, JJ.
OPINION BY BENDER, J.:
Leonard F. Stossel, Appellant, appeals pro se from the June 8, 2010 order denying as untimely his first petition for post-conviction relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We conclude that the PCRA court erred in not holding a hearing in accordance with Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998), to ensure that Stossel intelligently, knowingly, and voluntarily waived his right to representation. Accordingly, we remand for the PCRA court to conduct such a hearing.
Stossel entered a nolo contendere plea on September 5, 2006, to the crimes of attempted unlawful contact with a minor and criminal use of a communication facility. He was sentenced on December 1, 2006, to a term of incarceration of five to ten years. Stossel filed a timely notice of appeal, and this Court affirmed his judgment of sentence on November 8, 2007. Commonwealth v. Stossel, 944 A.2d 805 (Pa. Super.2007) (unpublished memorandum). He did not petition for permission to appeal with the Pennsylvania Supreme Court.
However, over two years later, on June 2, 2010, Stossel filed a pro se PCRA petition by using the standard, fill-in-the-blank form provided by the Pennsylvania Department of Corrections (DOC).[1] On the last page of that petition, Stossel checked the box next to the statement, "I do not have a lawyer and I am without financial resources or otherwise unable to obtain a lawyer." See Appellant's Pro Se PCRA Petition, 6/2/10, at 7. Additionally, he placed an "x" in the box next to the statement, "I do not want a lawyer to represent me," instead of marking the box requesting that the court appoint him representation. Id. Accordingly, the PCRA court did not appoint an attorney. On June 8, 2010, it dismissed Stossel's pro se petition without a hearing, concluding that it was untimely and met no exception to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii).[2]
*1288 Stossel filed a timely pro se appeal of that order. His brief to this Court consists of forty pages of handwritten, single-spaced uninterrupted argument. While Stossel does not divide his argument into any coherent sections or differentiated claims, from what we can discern, his chief contention is that his case meets the "governmental interference" exception to the PCRA timeliness requirements, 42 Pa.C.S. § 9545(b)(1)(i), and, therefore, the court improperly dismissed his petition as untimely.
However, we are unable to review this claim. Even though his petition was facially untimely, Stossel was still entitled to representation as this was his first PCRA petition and he indicated that he was unable to afford counsel.[3] Pa.R.Crim.P. 904(C) (stating "when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant's first petition for post-conviction collateral relief"); see also Commonwealth v. Smith, 572 Pa. 572, 818 A.2d 494, 500-01 (2003) (holding that "an indigent petitioner, whose first PCRA petition appears untimely, is entitled to the assistance of counsel in order to determine whether any of the exceptions to the one-year time limitation apply"). Stossel sought to waive this right by indicating in his pro se petition that he did not want legal representation, yet the PCRA court failed to conduct "an on-the-record determination ... that the waiver is a knowing, intelligent, and voluntary one." Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.Super.2009) (quoting Grazier, 713 A.2d at 82). The court's omission in this regard is plainly erroneous.
In Robinson, we set forth a thorough analysis of the importance of holding a Grazier hearing in the PCRA context, explaining:
While the right to legal representation in the PCRA context is not constitutionally derived, the importance of that right cannot be diminished merely due to its rule-based derivation. In the post-conviction setting, the defendant normally is seeking redress for trial counsel's errors and omissions. Given the current time constraints of 42 Pa.C.S. § 9545, a defendant's first PCRA petition, where the rule-based right to counsel unconditionally attaches, may well be the defendant's sole opportunity to seek redress for such errors and omissions. Without the input of an attorney, important rights and defenses may be forever lost.
In Commonwealth v. Meehan, 427 Pa.Super. 261, 628 A.2d 1151 (1993), which was specifically cited with approval in our Supreme Court's pronouncement in Grazier, we addressed whether the defendant had validly waived his rule-based right to counsel for purposes of a PCRA hearing. The defendant therein complained that he did not actually waive his right to counsel because the waiver colloquy was inadequate in that it did not conform to the requirements of Pa.R.Crim.P. 121, formerly Pa. R.Crim.P. 318, waiver of counsel.
That rule indicates that if a defendant seeks to waive his right to counsel, six *1289 areas of inquiry must be explored and explained to the defendant to "ensure that the defendant's waiver of the right to counsel is knowing, voluntary, and intelligent[.]" Pa.R.Crim.P. 121(A)(2). In Meehan, we noted that some of the precepts regarding waiver of counsel in the trial setting were inapplicable in the PCRA area. We did hold, however, that if a post-conviction waiver of counsel is requested by the defendant, the PCRA court must ascertain that "the defendant understands: (1) his right to be represented by counsel; (2) that if he waived this right, he will still be bound by all normal procedural rules; and (3) that many rights and potential claims may be permanently lost if not timely asserted." Id. at 1157; see also Commonwealth v. Powell, 787 A.2d 1017, 1019 (Pa.Super.2001). While we concluded that the colloquy conducted therein was sufficient, that case clearly indicates four of the six areas of inquiry contained in Rule 121 apply in the PCRA context. Pa.R.Crim.P. Rule 121(A)(2) provides:
(2) To ensure that the defendant's waiver of the right to counsel is knowing, voluntary, and intelligent, the judge or issuing authority, at a minimum, shall elicit the following information from the defendant:
(a) that the defendant understands that he or she has the right to be represented by counsel, and the right to have free counsel appointed if the defendant is indigent;
(b) that the defendant understands the nature of the charges against the defendant and the elements of each of those charges;
(c) that the defendant is aware of the permissible range of sentences and/or fines for the offenses charged;
(d) that the defendant understands that if he or she waives the right to counsel, the defendant will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules;
(e) that the defendant understands that there are possible defenses to these charges that counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently; and
(f) that the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be lost permanently.
Subsections (b) and (c) are not relevant in the PCRA setting; however, the remainder of concepts examined in Rule 121 clearly impact on whether a defendant understands the full import of his decision to act as his own counsel. Therefore, in accordance with Meehan and as required by [Commonwealth v.] Davido, [582 Pa. 52, 868 A.2d 431 (2005) (finding that it is up to the trial court to ensure that a proper colloquy is performed where a defendant has invoked his right to self-representation),] we conclude that if a PCRA defendant indicates a desire to represent himself, it is incumbent upon the PCRA court to elicit information from the defendant that he understands the items outlined in Pa. R.Crim.P. 121(A)(2)(a), (d), (e), and (f). A court must explain to a defendant that he has the right to counsel, in accordance with (a), that he is bound by the rules as outlined in (d), and that he may lose rights, as indicated in (f). Subsection (e) must be appropriately tailored so that a defendant is informed that "there are possible defenses to these charges that counsel might be aware of, and if these defenses are not raised [in a *1290 PCRA petition], they may be lost permanently."
Robinson, 970 A.2d at 458-460.
In the present case, the PCRA court erred in not conducting an on-the-record colloquy to explain the above-stated information to Stossel and ensure that he understood the repercussions of his decision to waive his right to counsel. Accordingly, we are required to remand for a hearing that comports with Grazier and Rule 121, as espoused in Robinson.
In addition, this case has brought to our attention the fact that the DOC's standard, fill-in-the-blank PCRA petition allows petitioners to check a box indicating that they do not wish counsel to be appointed. While it is likely that most PCRA courts conduct colloquies of petitioners in such situations, here, the PCRA court incorrectly concluded that simply checking the box was sufficient to waive the right to representation. In light of this error, we expressly hold that when a first-time petitioner indicates in his pro se petition that he does not wish to be represented by an attorney, the PCRA court must still conduct a Grazier hearing, eliciting information in accordance with Rule 121 and Robinson, before permitting the petitioner to proceed pro se.
In addition, we acknowledge that Stossel did not argue that he was entitled to counsel, or in any way challenge his waiver of that right, on appeal to this Court. That fact, however, does not prevent us from sua sponte addressing this issue and remanding his case. Our Supreme Court stated in Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 699 (1998) (citation omitted), that "[t]he denial of PCRA relief cannot stand unless the petitioner was afforded the assistance of counsel." Moreover, it appears that this Court has raised the denial of counselor the ineffective waiver of the right theretosua sponte and remanded for the PCRA court to correct that error in several prior cases.[4] However, as no case of which we are aware expressly states that this is the appropriate procedure for disposing of such cases, we are inclined to do so herein. Thus, we hold that where an indigent, first-time PCRA petitioner was denied his right to counselor failed to properly waive that rightthis Court is required to raise this error sua sponte and remand for the PCRA court to correct that mistake.
Accordingly, we vacate the PCRA court's June 8, 2010 order dismissing Stossel's pro se petition and remand for the court to conduct a Grazier hearing to determine if Stossel is knowingly, intelligently, and voluntarily waiving his right to counsel. If Stossel retracts his desire to proceed pro se, new counsel must be appointed.[5]Robinson, 970 A.2d at 460.
*1291 Order vacated. Case remanded. Jurisdiction relinquished.
Judge OTT concurs in the result.
NOTES
[1] In the top left-hand corner of the form, it states "DC-198" and "Rev. 7-01." See Appellant's Pro Se PCRA Petition, 6/2/10, at 1. We assume that this indicates that the DOC issued the form, which was last revised in July of 2001.
[2] Stossel's judgment of sentence became final on December 8, 2007, at the expiration of the thirty day time period for seeking review with the Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review); Pa.R.A.P. 1113(a) ("a petition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 30 days of the entry of the order of the Superior Court sought to be reviewed"). Thus, he had until December 8, 2008, to file a timely PCRA petition. His petition filed on June 2, 2010, was therefore patently untimely.
[3] We acknowledge that the PCRA court did not determine whether Stossel was indigent, thereby qualifying for a court-appointed attorney. However, this is not a question for this Court to assess. Commonwealth v. Evans, 866 A.2d 442, 446 (Pa.Super.2005) (stating that this Court is "not required to consider, nor shall we, whether [a petitioner] ... is indigent"). Because "such questions should be addressed by the PCRA court in the first instance," the court can conduct this assessment upon remand. Id.
[4] See Commonwealth v. Stout, 978 A.2d 984 (Pa.Super.2009) (concluding that petitioner's writ of habeas corpus was the functional equivalent of a PCRA petition and remanding for the appointment of counsel because it was his first petition); Robinson, 970 A.2d at 460 (remanding where the PCRA court permitted the petitioner to proceed pro se without conducting a colloquy to ensure that that decision was made knowingly, voluntarily, and intelligently); Commonwealth v. Jackson, 965 A.2d 280, 284 (Pa.Super.2009) (remanding for appointment of counsel where we determined that even though it was petitioner's second PCRA petition, counsel was required at both the PCRA court level and on appeal); Evans, 866 A.2d at 443 (remanding for appointment of counsel where court did not appoint counsel to represent the petitioner in his first PCRA petition); Commonwealth v. Brown, 836 A.2d 997, 999 (Pa.Super.2003) (remanding for the appointment of counsel where the petitioner was represented by a court-appointed attorney before the PCRA court, but was effectively abandoned by counsel on appeal).
[5] Because Stossel asserted claims of ineffective assistance of his plea counsel in his pro se petition, we direct that an attorney other than his plea counsel be appointed if necessary. In addition, there is no indication in the record that the PCRA court issued notice of its intent to dismiss pursuant to Pa.R.Crim.P. 907. Thus, we direct the court to satisfy this notice requirement if it again decides to dismiss Stossel's petition.
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442 F.2d 1346
Fed. Sec. L. Rep. P 93,112Morton GLOBUS et al., Plaintiffs,v.LAW RESEARCH SERVICE, INC. and Ellias C. Hoppenfeld,Defendants-Appellants.BLAIR & CO., Granbery, Marache, Incorporated,Defendant-appellee and Third-Party Plaintiff,v.Paul WIENER, Third-Party Defendant.
No. 861, Docket 35645.
United States Court of Appeals, Second Circuit.
Argued June 14, 1971.Decided June 14, 1971.
Alfred S. Julien, New York City (Julien, Glaser & Blitz, New York City), for defendants-appellants Law Research Service, Inc. and Ellias C. Hoppenfeld.
Milton Black, New York City (Thomas R. Esposito, Mudge, Rose, Guthrie & Alexander, New York City, of counsel), for defendant-appellee.
Before MOORE and KAUFMAN, Circuit Judges, and TIMBERS, District judge.1
PER CURIAM:
1
We affirmed in open court Judge Marvin E. Frankel's award to Blair & Co., Granbery, Marache, Inc. (Blair) of contribution in the amount of one-third each from Law Research Service, Inc. (LRS) and Ellias C. Hoppenfeld (Hoppenfeld), Blair's co-defendants in an earlier stage of these proceedings.
2
In Globus v. Law Research Service,
3
In Globus v. Law Research Service, Inc., 418 F.2d 1276 (1969), we affirmed a judgment entered against Blair, LRS, and Hoppenfeld for their joint and several liability pursuant to 17(a) of the Securities Act of 1933, 15 U.S.C. 77q(a) and 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. 78j(b) for failing to disclose material facts in connection with a public offering of the stock of LRS. 287 F.Supp. 188 (D.C.1968). Blair subsequently satisfied the judgment and by a motion in the district court sought to compel LRS and Hoppenfeld to pay their pro-rata shares of the judgment.
4
Judge Frankel awarded contribution. We agree with both his result and reasoning and affirm the judgment on the basis of his opinion, reported at 318 F.Supp. 955 (1970).
1
Chief Judge of the District of Connecticut, sitting by designation
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J-A28003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
K.S. :
:
: No. 914 MDA 2018
APPEAL OF: J.W.M. :
Appeal from the Order Entered May 8, 2018
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-17-09360
BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 17, 2018
J.W.M. (Petitioner) appeals from the order, entered in the Court of
Common Pleas of Lancaster County, denying his petition to intervene in the
custody action between K.S. (Mother) and M.S. (Father). After our review,
we affirm the order based on the opinion authored by the Honorable Jeffrey
A. Conrad.
To summarize, Petitioner had a relationship with Mother approximately
seven years ago; they dated, although not exclusively, between May and July
of 2011. Mother gave birth to daughter (Child) in April of 2012. Mother told
Petitioner at the time she found out she was pregnant that he could be Child’s
father, and she let him know when Child was born. In the six years since
Child’s birth, however, Petitioner has done nothing to support Child,
emotionally or economically. Petitioner did not seek paternity testing.
J-A28003-18
When Child was two months old, Mother and Father began their
relationship and they started living together when Child was six months old.
Mother and Father married in September 2013, when Child was a toddler.
Thereafter, Mother and Father had two children. At all times, Father has
supported Child and treated her as his own.
On October 16, 2017, Father filed a complaint in divorce (Complaint)
against Mother. In the Complaint, Father sought custody of Child and the
parties’ two biological children.
Petitioner, having reconnected with Mother in 2017 via social media,
filed a petition to intervene and sought court-ordered paternity tests. The
court scheduled a hearing for May 7, 2018. A few days prior to the scheduled
hearing, Father’s counsel filed a praecipe to withdraw the Complaint.
Following the hearing, at which both parties and Petitioner testified, the court
denied Petitioner’s petition to intervene. See Order, 5/7/18.1 This appeal
____________________________________________
1 The order reads:
And now, this 7th day of May, 2018, following a hearing on the
Petition to Intervene attended by Plaintiff [M.S.], Defendant
[K.S.], and Potential Intervenor [J.W.M.], each with counsel, the
Petition to Intervene is hereby DENIED.*
*In Buccieri v. Campagna, [889 A.2d 1220 (Pa. Super.
2005)], the Superior Court denied a putative father’s
request for genetic testing on the grounds that he was
estopped from making a paternity claim because he was on
notice that the child may be his yet he failed to pursue a
claim for seven years. This case is factually similar in that
[Petitioner] knew he was a potential father prior to or shortly
-2-
J-A28003-18
followed. Both the trial court and Petitioner have complied with Pa.R.A.P.
1925.
Petitioner raises the following claims on appeal:
____________________________________________
after [Child’s] birth but did nothing to pursue confirmation
of paternity for nearly six years. [Petitioner] relies on the
case of K.E.M. v. P.C.S., [38 A.3d 798 (Pa. 2012)], in which
the Supreme Court directed that in “cases involving
separation and divorce . . . the Uniform Act on Blood Tests
to Determine Paternity is now to be applied on its terms
insofar as it authorizes testing.” Id. at 810-11. The Act
provides that “[i]n any matter . . . in which paternity,
parentage or identify of a child is a relevant fact, the court
. . . upon motion of any party to the action . . . shall order
the mother, child and alleged father to submit to blood
tests.” 23 Pa.C.S.A. § 5104(c). However, [Petitioner] is not
a party to this action, and this case is distinguishable from
K.E.M. because it is not one involving separation and
divorce. While [Father] did file divorce proceedings against
[Mother], those claims have been withdrawn and both
[Mother and Father] testified credibly of their reconciliation.
More importantly, [Petitioner] advanced no evidence that it
is in [Child’s] best interests that he be allowed to disrupt her
relationship with [Father]. [Father] has been her father
since she was six months old. He has cared for her
financially, practically, and emotionally. He treats her the
same as he does his biological children with [Mother]. He
signed a support order with the Office of Domestic Relations
during the separation and even attempted to have his name
listed on her birth certificate – both events occurring prior
to [Petitioner’s] Petition to Intervene. In short, [Father] is
the only father [Child] has ever known, and the court finds
that it is not in her best interests to disrupt that relationship.
Order, 5/7/18.
-3-
J-A28003-18
1. Whether the court erred and abused its discretion in not
permitting [Petitioner] to intervene in this custody action?
2. Whether the trial court erred and abused its discretion in its
application of the doctrine of paternity by estoppel to the
facts and circumstances of this case?
3. Whether the trial court erred and abused its discretion in not
considering the fraud on the part of Mother, and its effect
on [Petitioner’s] actions and the course of this matter?
4. Whether the court erred and abused its discretion in not
ordering genetic testing pursuant to statute and case law
under the facts and circumstances of this case?
Appellant’s Brief, at 5-6.
Estoppel is based on the public policy that children should
be secure in knowing who their parents are. If a certain
person has acted as the parent and bonded with the child,
the child should not be required to suffer the potentially
damaging trauma that may come from being told that the
father [s]he has known all his life is not in fact h[er] father.
Fish v. Behers, 741 A.2d 721, 724 (Pa. 1999) (citation omitted). The
doctrine of paternity by estoppel is rooted in the best interests of the child.
Vargo v. Schwartz, 940 A.2d 459 (Pa. Super. 2007).
After our review, we conclude the trial court properly applied the
doctrine of paternity by estoppel and precluded application of the Uniform Act
on Blood Tests to Determine Paternity. 23 Pa.C.S.A. § 5104.2 We agree with
the trial court’s conclusion that Buccieri is dispositive and that Petitioner’s
reliance on K.E.M. is misplaced. Under the circumstances of this case,
____________________________________________
2 The Uniform Act on Blood Tests to Determine Paternity creates a statutory
right to obtain blood testing to determine paternity; the right is not absolute
and must be balanced against competing societal/family interests. See
Miscovich v. Miscovich, 688 A.2d 726 (Pa. Super. 1997).
-4-
J-A28003-18
Petitioner is estopped by his own past conduct from obtaining genetic tests to
establish his paternity and/or assert his paternal rights. Buccieri, supra.
Where the putative father has failed to exercise his parental claim, there is no
reason to disturb the familial relationship that has developed among Mother,
Father and Child. Id. “When balanced against societal concerns for
constancy in [Child’s] life, we see no reason to allow [Petitioner] to march into
[Child’s] life at this late date.” Buccieri, 887 A.2d at 1227. See also B.K.B.
v. J.G.K., 954 A.2d 630, 636 (Pa. Super. 2008) (concluding that alleged
biological father’s failure to pursue parental rights until child was nine years
old estopped him from challenging mother’s former husband’s status as child’s
father); Moyer v. Gresh, 904 A.2d 958, 962 (Pa. Super. 2006) (where
biological father voluntarily relinquished parental rights to another man during
first nine years of child’s life, biological father was estopped from asserting
parental rights towards child); In re M.J.S., 903 A.2d 1, 10 (Pa. Super. 2006)
(holding biological father estopped from asserting paternity where he knew
another man had been named father, and despite having right to acknowledge
paternity, he waited to assert paternity until three years after child had been
adopted).
The legal fictions perpetuated through the years, including the
proposition that genetic testing is irrelevant in certain paternity cases, retain
their greatest force where, as here, there is an intact family seeking to defend
itself against third-party intervention. The evidence of record here supports
the trial court’s findings; thus, we will not disturb them. See Vargo, supra
-5-
J-A28003-18
at 462. Accordingly, we affirm the trial court’s order and direct the parties to
attach a copy of Judge Conrad’s opinion in the event of further proceedings.
Order affirmed.
Judge Musmanno joins the Memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2018
-6-
Circulated 12/11/2018 11:07 AM
ENTERED AND FILED
PROTHONOTARY'S OFFICE
LANCASTER,PA
... Electronlcal ly Flle<I' .....
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENN�Vl{PA8Ni1,.{PM
CIVIL ACTION - CUSTODY
Plaintiff,
v. No. CI-17-09360
KJ · . ls:_ .· ''.: _ .,
Defendant.
ORDER
AND NOW, this 29111day of June, 2018, upon the Notice of Appeal of this court's order
entered on May 7, 2018, the court files this opinion pursuant to Pennsylvania Rule of Civil
Procedure l 925(a)
I. PROCEDURAL HISTORY
This case began when M ·. . S.. : ("Husband") filed a complaint in divorce against
I<. ... S . · t' ("Mother11). On January 22, 2018, the parties entered into an agreement regarding
the custody of their three children. This was made an order of court on January 30, 2018. On
April 4, 2018, J' . . M · ("Petitioner") filed his Petition to Intervene and request for genetic
testing. On May 3, 2018, Mother and Father filed a praecipe requesting the withdraw of the
divorce complaint. On May 7, 2018, the coert held a hearing on the Petition to Intervene and
subsequently entered an order denying Petitioner's request. Petitioner filed his Notice of Appeal
and concurrent statement of matters complained of on appeal on June 5, 2018. This opinion
follows.
II. STATEMENT OF FACTS
Petitioner testified that he met Mother seven years ago and the two began dating a few
months after meeting (Notes of Testimony, May 7, 2018, p. 7). They dated for two or three
NOTICE OF ENTRY OF ORDER OR DECREE
PURSUANT TO PA R.C.P. NO. 236
NOTIFICATION· THE ATIACHED DOCUMENT
HAS BEEN FILED IN THIS CASE
PROTHONOTARY OF LANCASTER CO., PA 1
Jun 29 2018 1:16 PM APPENDIX A
months, between May and July 2011 iliL p. 7).1 Petitioner testified that he believed their
relationship to be exclusive but admitted Mother broke up with him several times during this
period iliL p. 8). He was also aware that Mother dated other men during and around this time
(llL., p. 9). He learned of Mother's pregnancy in September of that year (Id., p. 9) and attended
one of Mother's prenatal appointments in December or January (Id., p. 10, 33). Mother sent him
a text message the day after the Child's birth, in April 2012, and Petitioner visited Mother within
the week and held the baby (Id., p.11). He was interested to see if the Child looked like him ilib
p.11 ). However, he also testified that he had no indication-until reconnecting with Mother in
November of2017-that he was the Child's father (ML, p. 25). At no point during this time did
Mother telJ Petitioner that he was the father (llL., p. 9, 11). In June, following the Child's birth,
Mother blocked Petitioner on social media, did not list him on the birth certificate, and did not
file a support action against him (llL., p. 11-12). Instead, Mother told him that she was going to
be with a man named Eric, and that Eric would take care of her and the Child (Id., p. 13). She did
not tell Petitioner that Eric was the Child's father, but Petitioner assumed he was (l!L, p. 38).
Petitioner also testified that Mother did not ask him to do a patemitystest fo11owing the Child's
birth (Id., p. 11).
"
Mother and Petitioner did not speak again until 2017, when they made contact again via
social media (Id., p. 16). At that time, Mother told Petitioner that Eric had taken a paternity test,
but the test showed Eric was not the father (Id., p. 16-17). She also told him he might be the
father and suggested he take a paternity test. However, before he could do so, Mother told him
she could no longer speak to him about the Child (Id., p. 17). At this point Petitioner wanted to
take a paternity test, but he was willing to wait until Mother was ready (Id., p. 21). Petitioner
eventually took it upon himself to search the divorce records, where he found his given name-
I
Petitioner testified that his relationship with Mother occurred between May and July of2012. As the Child was
born in April of 2012, these dates are obviously incorrect. The court has referenced the correct dates here.
2
not his surname-listed as a possible father of the Child in Husband's complaint for divorce (Id.,
p. 22). Once Petitioner filed his petition to intervene, Mother re-contacted him. She asked him to
withdraw his petition but suggested he should eventually be introduced to the Child (Id., p. 22-
23).
Mother recitation of the facts differs significantly from Petitioner's account. According to
Mother, their relationship lasted a few months in the summer of 2011, but Petitioner knew from
the beginning that they were not exclusive and she was also seeing other men {Mh, p. 46). When
she learned she was pregnant, she told Petitioner right away that he might be the father (Id., p.
47). She believed then that Petitioner wanted nothing to do with the Child (Id., p. 56). She
testified that she remained in contact with him throughout her pregnancy, but he showed little
interest (kL, p. 47). She texted him on the day of the Child's birth, and he visited once (Id., p.
48). She told him she wanted a paternity test, and she contacted him'again after Eric proved not
to be the father-but Petitioner did not respond (Id., p. 49). After that, she did not hear from
Petitioner again until November of2017 (ML, p. 49). They met, but Mother limited her contact
with Petitioner. He had been obsessive about her in 2011, and she believed he was developing an
obsession again. She testified that he repeatedly asked her about her relationship with Husband,
;
from whom she was then separated. She eventually blocked him on social media (Id., p. 51).
Mother testified that she has been in a relationship with Husband since the Child was two
months old, they began living together when she was six months old, and they married in
September of2013 (Id., p. 52). Husband has been the Child's father since the couple began
living together. He provides for her and cares for her on a daily basis (Id., p. 53). They have two
other children together, and Husband treats the Child the same as he treats his biological children
(ld.., p. 53). The Child does not yet know that Husband is not her biological father, as Mother and
Husband agreed that they should wait to tell her until she is older (Id., p. 54). Along with their
3
other Children, the Child is excited that Mother and Husband intend to reunite ilib, p. 55).
Mother agrees with Husband's intention to withdraw the divorce claims (ML, p. 70).
Husband corroborated Mother's testimony regarding their relationship (Id., p. 70-71). He
began living with Mother and the Child when the Child was six or seven months old (ill, p. 72).
He has been a father figure to her for nearly that long (Id., p, 82). She calls him "dad" and has
done so since she could talk {ML, p. 72). He takes her to her medical appointments and knows
about her special medical needs (Id., p. 73). He is involved with her education, including
attending parent-teacher conferences ill, p. 73, 81). He takes her out for one-on-one activities
(Id., p, 80). When Husband and Mother separated, he signed an acknowledgement of paternity
with the office of domestic relations, and the Child was included on the resulting support order
(lQ., p. 78-79). He even attempted to have his name listed as the father on the Child's birth
certificate, a step which Mother supported (Id., p, 82-83). Husband took these steps prior to
Petitioner's petition to intervene ilih, p. 82·83). Finally, Husband confirmed Mother's testimony
that he has withdrawn the divorce claims, and he and Mother intend to reunite (Id., p. 74).
III. STANDARD OF REVIEW
When an appellate court is faced with a question oflaw, its standard ofreview is de novo
,,
and its scope of review is plenary. K.E.M. v. P.C.S., 38 A.3d 798, 803 (Pa. 2012). However, the
appellate standard of review for a paternity decision is abuse of discretion. D.M. v. V.B .• 87 A.3d
0
323, 327 (Pa. Super. 2014) ." Abuse of discretion exists where the trial court overrides or
misapplies the law, or ifthere is insufficient evidence to sustain its order. R.W.E. v. A.B.K .• 961
A.2d 161, 165 (Pa. Super. 2008) citing Vargo v. Schwartz, 940 A.2d 459, 462 (Pa. Super. 2007).
Absent an abuse of discretion or insufficient evidence to sustain the support order, the reviewing
court will not interfere with the broad discretion afforded the trial court. Haselrig v. Haselrig,
840 A.2d 338, 339 (Pa. Super. 2003) quoting Strawn v. Strawn, 664 A.2d 129, 131 (Pa. Super.
4
1995). Moreover, the resolution of factual issues is a matter for the trial court, and the reviewing
court will not disturb the trial court's findings if they are supported by competent evidence.
Doran v. Doran, 820 A.2d 1279, 1282 (Pa. Super. 2003). "The finder of fact is entitled to weigh
the evidence presented and assess its credibility. The fact finder is free to believe all, part, or
none of the evidence and the [appellate court] will not disturb the credibi1ity determinations of
the court below." 904 A.2d 15, 20 (Pa. Super. 2006) (internal citations and quotations omitted).
IV. DISCUSSION
Petitioner's statement of matters complained of on appeal lists seven paragraphs.
However, these paragraphs do not each contain a separate issue. Paragraph 1 is a broad and
vague statement of the court's error. Paragraphs 2 and 3 question the courts application of
paternity by estoppel. Paragraphs 5, 6, and 7 question the court's analysis of the best interest of
the Child. Rather than reproduce Petitioner's statement of errors verbatim, the court sununarizes
them as follows:
A. The court erred in its application of the doctrine of paternity by estoppel.
B. The court erred in not considering the fraud on the part of Mother.
C. The court erred in its consideration of the best interests of the Child.
This opinion shall address each of these condensed matters in turn.
A. The court erred in its application of the doctrine of paternity by estoppel.
This presumption of paternity does not apply in this case. The Child's birth occurred
prior to the commencement of Mother's relationship with Husband, so the question of her
paternity does not impinge upon their marriage. No party argues that Husband is the Child's
biological father, but Mother and Husband do argue that he is her father by way of estoppel:
because he has formed a parent-child bond with her; cared for her financially, physically, and
emotionally; and held himself out has her father.
5
In K.E.M. v. P.C.S., the Pennsylvania Supreme Court stripped away much of the
substance of the doctrine of paternity by estoppel. While the Court still found place for the
doctrine in Pennsylvania law, it held that "the determination of paternity by estoppel should be
better informed according to the actual best interests of the child, rather than by rote
pronouncements grounded merely on the longevity of abstractly portrayed (and perhaps largely
ostensible) parental relationships." K.E.M. v. P.C.S., 38 A.3d 798, 809 (Pa. 2012). This required
trial courts to develop an extensive record, including testimony of the legal and biological
fathers.
In K.E.M .• the Court also directed that in "cases involving separation and divorce ... the
Uniform Act on Blood Tests to Determine Paternity is now to be applied on its terms insofar as it
authorizes testing." K.E.M., 38 A.3d at 810-11. The Act provides that "(i]n any matter subject to
this section in which paternity, parentage or identity of a child is a relevant fact, the court ...
upon motion of any party to the action .... shall order the mother, child and alleged father to
submit to blood tests." 23 Pa.C.S.A. § 5104(c). Petitioner relies upon this statute and the
Supreme Court's direction in K.E.M. to argue that this court is compelled to order genetic
testing. However, the statute applies only to parties. Petitioner is not a party to this action; he is
.,
as of yet only a potential party. Furthermore, while the instant case was previously one involving
separation and divorce, by the time of the hearing this was no longer the case. While Husband
did file divorce proceedings against Mother, at the time of hearing those claims had been
withdrawn and both Husband and Mother testified credibly of their reconciliation.
Even if the Uniform Act on Blood Test could be applied to the present situation, this
court did find that the Supreme Court's direction in K.E.M. requires it. The cases are factually
distinguishable. In K.E.M. the mother filed a complaint for support against the putative
biological father. The question before the court then was who should support the child: the
6
mother's husband, who had provided financially for the child while the parties were in a
relationship but from whom the mother was separated; or the biological father? The instant
matter is not at all similar. Even when Mother and Husband were separated, there was never any
question that Husband would continue to support the Child and be the father he had always been.
Petitioner's attempt to intervene in this matter raises entirely different questions than were before
the Supreme Court when it decided K.E.M.
Instead, this case is similar to that of Buccieri v. Campagna. In Buccieri, the mother and
father had only a brief relationship, after which she informed him she was pregnant. The mother
never sought support from the father and he did not seek to establish paternity. Indeed, he did not
see the child until three or four years after birth, and then only in passing. Even after this chance
meeting, the father did not seek to establish any relationship with the child for another three or
four years. The Superior Court denied the putative father's request for genetic testing on the
grounds that he was estopped from making a paternity claim because he was on notice that the
child may be his yet failed to pursue the claim for seven years. Buccieri v. Campagna, 889 A.2d
1220 (Pa. Super. 2005). This instant appeal is factually similar in that Petitioner knew he was a
potential father prior to or shortly after the Child's birth-he visited Mother in the hospital and
,,
held the Child-but he did nothing to pursue conformation of paternity for nearly six years.
In applying the doctrine of paternity by estoppel to the facts of this case, this court finds
particularly instructive the dissent authored by Justice Baer in K.E.M. Justice Baer, joined by
Justice McCaffery, objected to the majority opinion not because it stripped away much the
substance of the doctrine of paternity by estoppel, but because it did not go far enough. Justice
Baer wrote: "I would abrogate the doctrine in its entirety, with the limited exception of where its
invocation would preserve the status of a husband who chooses to parent a non-biological child
born into an existing marriage." K.E.M., 38 A.3d at 814. This, of course, is nearly the precise
7
situation faced by this court, the only difference being the Child was born prior to the marriage.
Husband has chosen be a father in every way to the Child to whom he bears no blood
relationship. He wishes to continue that relationship, and wished to do so even prior to his
reconciliation with Mother. Whatever the extent of the Supreme Court's decision in K.E.M .• the
doctrine of paternity by estoppel survives in sufficient strength to protect husband's relationship
with the Child, especially in light of Petitioner's failure to act until this moment.
B. The court erred in not considering the fraud on the part of Mother.
The court did not consider fraud on the part of Mother because, quite simply, the court
did not find that Mother had committed fraud. "The traditional test for fraud is: (1) a
misrepresentation; (2) a fraudulent utterance; (3) an intention by the maker that the recipient will
thereby be induced to act; (4) justifiable reliance by the recipient upon the misrepresentation; and
(5) damage to the recipient as a proximate result." Glover v. Severino, 946 A.2d 710, 713 (Pa.
Super. 2008) citing N.C. v. M.H .• 923 A.2d 499, 503 (Pa. Super. 2007). "Fraud is practiced when
deception of another to his damage is brought about by a misrepresentation of fact or by silence
when good faith required expression," In re Adoption of R.J.S., 889 A.2d 92, 98 (Pa. Super.
2005) {emphasis in original). Petitioner testified that that he wanted a paternity test at the time of
.,
the Child's birth, but Mother declined (N.T., p. 11). He also asks the court to believe he had no
indication-none-that he was the Child's father befor! November 2017 (Id. p. 25). Despite the
fact that he was in a sexual relationship with Mother nine months prior to the Child's birth and
visited Mother with the express intention of seeing if the Child looked like him (.lih p. 11). The
court did not find Petitioner's testimony credible. Instead, the court found credible Mother's
testimony that she asked Petitioner to undergo a paternity test shortly after the Child's birth and
he refused. Furthermore, Petitioner failed to introduce at the hearing any other credible evidence
that Mother hid his relationship to the Child from him that would explain his nearly six years of
8
disinterest in the Child. Mother telling Petitioner that she was going to live with another man and
this man would take care of her and the Child is simply not a misrepresentation of the Child's
parentage on Mother's part. Nothing prevented Petitioner from insisting on a paternity
determination at that time-except perhaps his own reticence at being required to make support
payment (llb p. 30). Mother had no knowledge of who the Child's biological father was among
the men she had a relationship with during the time of the Child's conception. She did not, either
through statement or silence, hide the Petitioner's potential parentage from him. She did not
commit fraud.
C. The court erred in its consideration of the best interests of the Child.
As discussed in Section IV.A, supri!, the doctrine of paternity by estoppel must now be
considered as it relates to the Child's best interests. Petitioner argues that this court failed to
consider the contributions he is willing to make on behalf of the Child and the interest of the
Child in knowing her biological father (ifhe were to prove to be her biological father). This is
incorrect. The court heard Petitioner's testimony and considered it. However, it also considered
the testimony of Husband and Mother. Husband has been the Child's father since she was six
months old. He has cared for her financially, practically, and emotionally. He treats her the same
..
as he does his biological children with Mother. He signed a support order with the Office of
Domestic Relations during the separation and even attempted to have his name listed on her birth
certificate-both events occurring prior to Petitioner's attempt to intervene. In short, Husband
has fulfilled the role of father to the Child completely, and he wishes to continue doing so.
Against this mass of evidence, Petitioner's vague statements regarding contributions and support
carry little weight. Further, Husband is the only father the Child has ever known. "[C]hildren
should be secure in knowing who their parents are. If a certain person has acted as the parent and
bonded with the child, the child should not be required to suffer the potentially damaging trauma
9
that may come from being told that the father [she] has known all [her] life is not in fact [her]
father. Fish v. Behers, 741 A.2d 721, 724 quoting Brinkley v. King. 701 A.2d 176, 180 (Pa.
1997).
V. CONCLUSION
For all the reasons given above, this court did not commit an error of law or an abuse of
discretion in denying Petitioner's request for genetic testing. The court's order dated May 7,
2018, should be upheld.
BY THE COURT:
JEFFREY A. CONRAD, JUDGE
ATTEST:---------
COPIES TO: Julie Miller, Esq.
Beulah Mall, Esq.
Paula Katchmer, Esq.
0
10
| {
"pile_set_name": "FreeLaw"
} |
617 F.Supp.2d 424 (2009)
LANCE MFG., LLC and Archway Bakeries, LLC, Plaintiffs,
v.
VOORTMAN COOKIES LIMITED, Defendant.
Civil Case No. 3:09cv44.
United States District Court, W.D. North Carolina, Charlotte Division.
March 24, 2009.
*427 Rodrick J. Enns, Enns & Archer, LLP, Winston-Salem, NC, for Plaintiffs.
C. Grainger Pierce, Jr., Patrick D. Sarsfield, II, Nexsen Pruet, PLLC, Charlotte, NC, for Defendant.
ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on the Plaintiffs' Motion for Preliminary Injunction filed February 24, 2009 [Doc. 6]; the Plaintiffs' Motion to Expedite Hearing on Motion for Preliminary Injunction, filed February 24, 2009 [Doc. 8]; and the Plaintiff's Motion with Consent for Leave to File Additional Evidence in Support of Motion for Preliminary Injunction [Doc. 20].
I. PROCEDURAL HISTORY
On February 6, 2009, the Plaintiffs Lance Mfg., LLC and Archway Bakeries, LLC (collectively "Lance") filed a Complaint against the Defendant Voortman Cookies Limited ("Voortman"), asserting claims for (1) a violation of the Lanham Act, 15 U.S.C. § 1125(a), for false designation of origin; (2) common law trademark infringement and unfair competition; and (3) violations of the Unfair and Deceptive Trade Practices Act, N.C. Gen.Stat. §§ 75-1.1, et. seq. The Complaint seeks compensatory damages as well as preliminary and permanent injunctive relief. [Doc. 1].
An Affidavit of Service filed on February 13, 2009, indicates that Voortman was *428 served with process on February 12, 2009. [Doc. 5]. On March 3, 2009, Voortman filed a Motion for Extension of Time to File an Answer. [Doc. 10]. That Motion was granted, and Voortman's Answer is due on March 24, 2009.
On February 24, 2009, Lance filed the present Motion for Preliminary Injunction and a Motion to Expedite Hearing on Motion for Preliminary Injunction. [Docs. 6, 8]. A preliminary injunction hearing was held on March 19, 2009. This matter is now ripe for disposition.
II. FACTUAL BACKGROUND
Archway® has been a well-known premium brand of packaged cookies in the United States for many years. Company records indicate that the brand was first introduced in 1954 by what was then Swanson's Cookie Co.[1] The company pioneered the retail sale of packaged "soft" cookies, which, though having a shorter shelf life, were moister and were perceived by consumers as closer to "home baked" than most other commercial cookies of the day. [Declaration of Mark Carter ("Carter Decl."), Doc. 6-2 at ¶ 6]. The first cookie introduced under the Archway brand was its original oatmeal cookie, and the oatmeal cookie flavors (including oatmeal raisin) remain the most popular Archway cookies, accounting for approximately thirty percent of total Archway sales. [Id. at ¶ 8]. Archway cookies have been immensely successful in the marketplace, and over the ensuing decades, the brand has continued to grow. By the early 2000s, annual sales of Archway cookies exceeded $120 million in the United States. Annual sales faltered after 2004 due in part to management issues that led to the bankruptcy filing in late 2008 that is described below. [Id. at ¶ 7].
At least since 2005, Archway cookies have appeared on retail shelves in packaging (the "Archway Package" or "Archway trade dress")[2], which contains the following elements:
Red horizontal stripes on the upper and lower portions of the package outside the central label.
Two tones of red used as background and accent colors.
Gold trim on banners and other graphic elements.
White lettering with gold borders.
A central red ribbon-like scroll with gold trim displaying the product variety (such as "oatmeal").
A gold-trimmed bright red banner across the top edge of the main label, notched around a medallion displaying the brand name.
A light-colored background with white and light yellow gradients radiating from behind the logo medallion in a sunbeam effect.
*429 Photographs of portions of three cookies arranged against the left, right and bottom sides of the main label.
[Id. at ¶ 18; Carter Decl. Ex. 1, Doc. 60-2 at 12]. Prior to 2005, the packaging for Archway cookies differed from the current Archway Package in various particulars at various times, but the most salient elements of the Archway Package have been used continuously for decades. [Carter Decl., Doc. 60-2 at ¶ 18].
On October 8, 2008, Archway Cookies, LLC, filed a petition to reorganize pursuant to Chapter 11 of the Bankruptcy Code. While Archway products were never withdrawn from the market, Archway's manufacturing and distribution networks were disrupted, resulting in reduced inventories in stores and widespread speculation as to whether the business would continue to operate. [Id. at ¶¶ 9, 10, 14; Declaration of Adrian Voortman ("Voortman Decl,"), Doc. 11-2 at ¶ 9]. Under the auspices of the United States Bankruptcy Court for the District of Delaware, and pursuant to the United States Bankruptcy Code, an auction of the business assets of Archway Cookies, LLC was conducted in late 2008, with the preference being expressed by the trustee and creditors committee that the assets be sold to a single buyer who would continue to operate the Archway business as a going concern. [Carter Decl., Doc. 6-2 at ¶ 15]. Lance was the successful bidder in the auction, and on December 8, 2008, completed the purchase of all the tangible and intangible assets of Archway Cookies, LLC, including all intellectual property rights and customer goodwill, for $31,075,000. [Id. at ¶ 13; Declaration of Joseph B.C. Kluttz ("Kluttz Decl."), Doc. 20-2 at ¶ 6; Kluttz Decl. Ex. 2, Doc. 20-2 at 14].[3]
Defendant Voortman has been a longtime direct competitor of Archway, selling packaged cookies under its Voortman brand. Prior to November 2008, Voortman's products always had appeared in packages creating a completely different and easily distinguishable commercial impression from that of the Archway Package. [Carter Decl., Doc. 6-2 at ¶¶ 21, 23; Carter Decl. Ex. 4, Doc. 6-2 at 18]. In November 2008, however, Voortman introduced and began to offer for sale soft oatmeal and soft oatmeal raisin cookies in a new type of packaging (the "Voortman Package"). The Voortman Package bears the Voortman brand and logo and includes the following design elements:
Red horizontal stripes on the upper and lower portions of the package outside the central label.
Two tones of red used as background and accent colors.
Gold trim on banners and other graphic elements.
White lettering with gold borders.
A central red ribbon-like scroll with gold trim displaying the product variety (such as "oatmeal").
A gold-trimmed bright red banner across the top edge of the main label, notched around a medallion displaying the Voortman logo.
A light-colored background with white and light yellow gradients radiating from behind the logo medallion in a sunbeam effect.
Photographs of portions of three cookies arranged against the left, right and bottom sides of the main label.
[Carter Decl. Ex. 3, Doc. 6-2 at 16]. Oatmeal and oatmeal raisin cookies in the *430 Voortman Package have been and are still being offered and sold in retail stores in this judicial district, as well as elsewhere in the United States. [Carter Decl., Doc. 6-2 at ¶ 22].
Shortly after acquiring the Archway brand, Lance notified Voortman that it took issue with Voortman's new packaging. As early as January 13, 2009, Voortman expressed a willingness to change the Voortman Package. [Voortman Decl., Doc. 11-2 at ¶¶ 12, 13]. By February 5, 2009, Voortman had stopped producing the allegedly infringing Voortman Package. [Id. at ¶ 14]. In mid-February 2009, Voortman modified the packaging for its oatmeal and oatmeal raisin cookies (the "Modified Voortman Package") to replace the allegedly infringing Voortman Package. [Id. at ¶ 17; Voortman Decl. Ex. 3, Doc. 11-2 at 9].
Although Voortman has begun production of the Modified Voortman Package, cookies packaged in the Voortman Package remain on store shelves and in possession of Voortman's distributors. The last date that Voortman shipped cookies in the allegedly infringing Voortman Package was on February 5, 2009. [Voortman Decl., Doc. 11-2 at ¶ 14]. The parties agree that soft-baked cookies have a typical shelf life of 100 days. Thus, any cookies sold in the Voortman Package will be cleared from store shelves at the latest by approximately May 16, 2009.
Prior to the filing of this lawsuit, Voortman expended over $5,000 to revise the Voortman Package. [Voortman Decl., Doc. 19 at ¶ 3]. Stopping the production of the Voortman Package further cost the company $7,500 in unusable packaging material. [Id. at ¶ 5]. Voortman has presented evidence that requiring the company to contact its independent distributors and instruct them to pull packages of Voortman cookies from store shelves would cause the company to incur losses of approximately $120,000 due to lost sales and credits to its distributors. [Id. at ¶ 6].
III. STANDARD OF REVIEW
In the Fourth Circuit, the entry of a preliminary injunction is governed by the four-part test set forth in Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir.1977), which requires a court to consider the following four elements: "(1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied, (2) the likelihood of harm to the defendant if the injunction is granted, (3) the likelihood that the plaintiff will succeed on the merits, and (4) the public interest." Scotts Co. v. United Industries Corp., 315 F.3d 264, 271 (4th Cir.2002) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir.1991)); Blackwelder, 550 F.2d at 193-95. "When deciding whether to grant a preliminary injunction, the court must first determine whether the plaintiff has made a strong showing of irreparable harm if the injunction is denied; if such a showing is made, the court must then balance the likelihood of harm to the plaintiff against the likelihood of harm to the defendant." Scotts Co., 315 F.3d at 271. If the court determines that "the balance of hardships tips decidedly in favor of the plaintiff, then typically it will be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation." Id. (citations and internal quotation marks omitted) If, however, the balance of hardships is substantially equal between the parties, "then `the probability of success begins to assume real significance, and interim relief is more likely to require a clear showing of a *431 likelihood of success.'" Id. (quoting Direx Israel, Ltd., 952 F.2d at 808).
IV. DISCUSSION
As an initial matter, Voortman argues that Lance's request for injunctive relief should be denied as moot, as all of the cookies packaged in the allegedly infringing Voortman Package "have been removed" and are "no longer in use" by Voortman, and because Voortman has agreed that it "will not reintroduce these packages into the marketplace in the future." [Doc. 11 at 5,6]. Accordingly, Voortman argues, there simply is no viable legal issue left to resolve, and Lance's request for injunctive relief should be denied. [Id.].
Lance counters that its request for injunctive relief is not moot, as the allegedly infringing Voortman Packages are still on store shelves and in the possession of Voortman distributors and thus are continuing to cause Lance injury. [Doc. 16 at 2-5].
As the Fourth Circuit has stated, "it is well established that a voluntary discontinuance of challenged activities by a defendant does not necessarily moot a lawsuit." Lyons P'ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 800 (4th Cir. 2001) (quoting United States v. Jones, 136 F.3d 342, 348 (4th Cir.1998)). One exception to this well-established rule is that a request for injunctive relief may be rendered moot where "there is no reasonable expectation that the wrong will be repeated." Lyons, 243 F.3d at 800 (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). Defendants bear a "heavy burden" in establishing mootness "because otherwise they would simply be free to return to their old ways after the threat of a lawsuit has passed." Lyons, 243 F.3d at 800 (quoting Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 72, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983) (per curiam)).
In the present case, Voortman has not met its "heavy burden" of showing that Lance's request for injunctive relief is moot. While Voortman has ceased production of the allegedly infringing Voortman Package, Voortman has not shown that it would be unable to resume such production in the future and thus has not established that "there is no reasonable expectation that the wrong will be repeated." See Lyons, 243 F.3d at 800. Furthermore, Voortman admits that cookies packaged in this allegedly infringing packaging are still on store shelves and in the possession of its distributors.[4] Thus, at the very least, there is an issue as to whether Lance will suffer irreparable injury in the future as a result of the allegedly infringing products that are still in the marketplace. For these reasons, the Court finds that the injunctive relief requested by Lance has not been rendered moot by the Defendant's actions in ceasing production of the Voortman Package. Accordingly, the Court will now turn to the merits of the Plaintiffs' request for injunctive relief.
The first step in deciding whether to grant a preliminary injunction is to determine whether the plaintiff has made a strong showing of irreparable harm in the absence of injunctive relief. See Scotts Co., 315 F.3d at 271. The Fourth Circuit has held that, in the context of a Lanham Act trademark infringement action, "a presumption of irreparable injury is generally applied once the plaintiff has demonstrated a likelihood of confusion, the key element *432 in an infringement case." Id. at 273. Lance has asserted in this case that there is a likelihood of confusion between the parties' products; as such, the issue of the "likelihood of irreparable harm" is necessarily intertwined with the merits of the underlying infringement action. Accordingly, before balancing the hardships of the parties, the Court must first address the substance of Lance's Lanham Act claim in order to determine whether the Plaintiffs have made an adequate showing of a likelihood of confusion in this case. See id. at 272.[5]
In order to prove a claim for trade dress infringement under the Lanham Act, a plaintiff must show that: "(1) its trade dress is primarily non-functional; (2) the alleged infringement creates a likelihood of confusion; and, (3) the trade dress either (a) is inherently distinctive, or (b) has acquired a secondary meaning." Ashley Furniture Industries, Inc. v. SanGiacomo N.A. Ltd., 187 F.3d 363, 368 (4th Cir.1999).
Generally speaking, trade dress is considered non-functional if it is not essential to the use or purpose of the product or if it does not affect the cost or quality of the product. See Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 165, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995). A party asserting a claim for the infringement of an unregistered trade dress "has the burden of proving that the matter sought to be protected is not functional." 15 U.S.C. § 1125(a)(3). In the present case, the Archway trade dress consists of an arbitrary combination of colors and graphic elements that is neither essential to use of the goods nor relevant to their cost or quality, but rather allows consumers to easily recognize Archway cookies and distinguish them from other products. Accordingly, the Court finds that the Archway trade dress is non-functional.
Next, the Court must determine whether the Archway trade dress is distinctive. A trademark, including trade dress, may achieve distinctiveness in one of two ways. First, a mark may be considered inherently distinctive. Inherent distinctiveness arises where the intrinsic nature of the product "serves to identify a particular source." Wal-Mart Stores, Inc., 529 U.S. at 210, 120 S.Ct. 1339 (quoting Two Pesos, 505 U.S. at 768, 112 S.Ct. 2753). Even if a mark is not inherently distinctive, a mark may be considered "distinctive if it has developed secondary meaning." Wal-Mart Stores, Inc., 529 U.S. at 211, 120 S.Ct. 1339 Secondary meaning "occurs when, `in the minds of the public, the primary significance of a mark is to identify the source of the product rather than the product itself.'" Id. (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 851 n. 11, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982)). "If a particular product's trade dress has acquired a secondary meaning, then the consuming public associates that product with a certain producer, *433 and, most importantly, is likely to make that association when the trade dress is used on another producer's product." M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 449 (4th Cir.1986).
In the present case, the Archway packaging trade dress includes the following elements: red horizontal stripes on the upper and lower portions of the package outside the central label; two tones of red used as background and accent colors; gold trim on banners and other graphic elements; white lettering with gold borders; a gold-trimmed bright red banner across the top edge of the main label, notched around a medallion displaying the brand name; a light-colored background with white and light yellow gradients radiating from behind the logo medallion in a sunbeam effect; and photographs of portions of three cookies arranged against the left, right and bottom sides of the main label. Of particular distinction is a central red ribbon-like scroll with gold trim that displays the product variety, such as "oatmeal" or "oatmeal raisin." While Voortman argues that these features are several non-distinctive elements that are commonly used by other cookie manufacturers [Doc. 11 at 9-10], the fact that these elements may be commonly used is not dispositive. "[T]rade dress is the `total image' of a product, and thus, the relevant inquiry is not whether the individual components of a design are common or not, but rather whether the alleged trade dress as a whole is inherently distinctive." Ashley Furniture, 187 F.3d at 373. Viewing the elements as a whole, the Court finds that Lance has shown that it is likely to succeed in proving that the Archway trade dress creates an overall impression that is distinctive and thus subject to protection under § 43(a) of the Lanham Act.
Additionally, Lance has presented evidence that the Voortman Package was an intentional copy of the Archway trade dress. The Fourth Circuit has held that "evidence of intentional, direct copying establishes a prima facie case of secondary meaning. . . ." Kramer, 783 F.2d at 448. The rationale for this rule is that "when a defendant copies the trademark of a competitor, it is likely that he intended to appropriate some commercial advantage or benefit that his competitor derived from the use of the mark." Id. at 499.
In the present case, the Voortman Package is nearly identical to the Archway Package, incorporating the same elements of red horizontal stripes on the upper and lower portions of the package outside the central label; two tones of red used as background and accent colors; gold trim on banners and other graphic elements; white lettering with gold borders; a central red ribbon-like scroll with gold trim displaying the product variety (such as "oatmeal"); a gold-trimmed bright red banner across the top edge of the main label, notched around a medallion displaying the brand name; a light-colored background with white and light yellow gradients radiating from behind the logo medallion in a sunbeam effect; and photographs of portions of three cookies arranged against the left, right and bottom sides of the main label. Indeed, absent the medallion and logo identifying the particular company, these packages would be virtually indistinguishable.
The timing of the Voortman Package also suggests that it was an intentional copy. As Defendant's principal Adrian Voortman explained in his Declaration, Archway's bankruptcy and the dwindling of Archway inventory in some grocery stores led the company to conclude that Archway had abandoned its trademarks and trade dress. [Voortman Decl., Doc. 11-2 at ¶¶ 9, 10]. Shortly after Archway *434 filed for bankruptcy, Voortman changed the packaging of its oatmeal and oatmeal raisin brand cookies, resulting in an overall package that looks remarkably similar to the Archway packaging. Given this sequence of events, it appears that Voortman intentionally copied the Archway trade dress, believing it had been abandoned, in order to appropriate the commercial advantage that Archway had derived from the use of its distinctive packaging. See Kramer, 783 F.2d at 449. For these reasons, the Court concludes that the presumption of secondary meaning would apply in this case.
In light of the evidence that the Voortman Package was an intentional copy of the Archway trade dress, the Court further finds that Lance has made an adequate showing of a likelihood of confusion between the Voortman Package and the Archway trade dress. "[C]ourts have almost unanimously presumed a likelihood of confusion upon a showing that the defendant intentionally copied the plaintiff's trademark or trade dress." Larsen v. Terk Technologies Corp., 151 F.3d 140, 149 (4th Cir.1998). Because Lance has shown a likelihood of confusion between Voortman's Packaging and the Archway trade dress, there is a presumption of irreparable harm to the Plaintiffs. See Scotts Co., 315 F.3d at 273.
Having found that there is a likelihood of irreparable harm to Lance in the absence of an injunction, the Court now must consider the likelihood of harm to Voortman if an injunction is granted. The entry of an injunction prohibiting Voortman from producing the infringing packaging in the future would not result in any appreciable harm, as Voortman already has ceased production of the infringing package. The Court must also consider, however, the potential harm to Voortman if the company were required to remove the infringing packages from the marketplace. Voortman has presented evidence that pulling the infringing inventory from store shelves will cost the company approximately $120,000 in lost sales and credits to its distributors. According to Voortman, it last shipped cookies in the infringing package on February 5, 2009. As these cookies have a typical shelf life of only 100 days, the infringing packages will be cleared from store shelves by May 16, 2009. To require Voortman to expend thousands of dollars to prevent further trade dress infringement for only a matter of a few weeks would be a significant financial burden.
Weighing the hardships of the parties, and considering the likelihood of the Plaintiffs succeeding on the merits of their trade dress infringement claim, the Court finds that the balance tips in favor of the Plaintiffs in this case. Accordingly, an injunction shall be entered prohibiting Voortman from further infringing the Archway trade dress by marketing the Voortman Package. In light of the relatively short time period that the infringing products will remain in the marketplace and the financial burden that Voortman would incur in removing these products, however, the Court finds that the injunction should be narrowly tailored so as to allow Voortman to sell off its available supply of cookies that are already in the marketplace that is, on store shelves or in the possession of its distributors. "Allowing such a sell-off of infringing goods avoids the wastefulness of extensive relabeling or trashing the existing stock of goods bearing an infringing mark." 5 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 30:3 (4th ed. 2008); Attrezzi, LLC v. Maytag Corp., 436 F.3d 32, 42 (1st Cir.2006) (allowing willful infringer a 12-month sell-off period for its existing stock of kitchen *435 appliances bearing the infringing mark). Such a narrowly-tailored injunction will minimize the harm to the parties while adequately serving the public interest. See Resorts of Pinehurst, Inc. v. Pinehurst Nat'l Corp., 148 F.3d 417, 423 (4th Cir. 1998) (recognizing public interest in preventing confusion and mistake arising from misleading marks).
To further minimize the potential harm to Voortman, the Court also will require Lance to post a bond to cover any additional costs incurred by Voortman in complying with this narrow injunction, should Voortman ultimately prevail. See Scotts, 315 F.3d at 285.
Finally, Lance contends in its reply brief that the injunction should extend to prohibit Voortman from using the Modified Voortman Package, on the grounds that this modified packaging "carries forward several identifiable elements" of the Archway trade dress. [Doc. 16 at 5]. To the extent that Lance seeks to further restrict Voortman's packaging activities or to limit or control Voortman's introduction of new packages, these issues are not properly before the Court. The Court will note, however, that the Modified Voortman Package is significantly different from the Archway trade dress, in that it features red and blue horizontal stripes, blue lettering with white and red borders, and a photograph of two whole cookies arranged against the right side of the main label. [See Voortman Decl. Ex. 3, Doc. 11-2 at 9]. Most notably, the Modified Voortman Package does not contain a ribbon-like scroll in the center panel displaying the variety of the product, which is a distinctive feature of the Archway trade dress. As such, the Modified Voortman Packaging presents a markedly different overall impression than the packaging which has been enjoined. Going forward, Lance will have a heavy burden in showing that this modified packaging violates the narrow preliminary injunction entered in this case.
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiffs' Motion for Expedited Hearing on Motion for Preliminary Injunction [Doc. 8] is GRANTED.
IT IS FURTHER ORDERED that the Plaintiffs' Motion with Consent for Leave to File Additional Evidence in Support of Motion for Preliminary Injunction [Doc. 20] is GRANTED.
IT IS FURTHER ORDERED that the Plaintiffs' Motion for Preliminary Injunction [Doc. 6] is hereby GRANTED as follows:
1. The Defendant Voortman Cookies Limited, its directors, officers, employees, representatives and agents, and any persons or entities in active concert or participation with them having actual notice of this Preliminary Injunction, are hereby ENJOINED from any advertising, distribution, offering for sale, sale, distribution or shipping of the Voortman Package. Subject to the posting of an appropriate bond, this injunction shall be in effect from May 16, 2009 until further Order from this Court.
2. The Defendant shall have until March 26, 2009 to provide evidence to the Court regarding the damages that it may reasonably suffer if it is ultimately found to have been improperly enjoined.
3. The Plaintiffs shall have until March 30, 2009 to file any response to the Defendant's filing.
4. Once the parties have submitted their supplemental filings, the Court shall enter an Order directing the Plaintiffs to post a security bond *436 with the Clerk of Court for the United States District Court for the Western District of North Carolina for the payment of such costs and damages as may be incurred by the Defendant should it ultimately be found to have been wrongfully enjoined. The injunction stated herein shall become effective only upon such posting.
IT IS SO ORDERED.
NOTES
[1] While these "company records" have not been shown to be records of regularly conducted business activity so as to be admissible under Fed.R.Evid. 803(6), such evidence nevertheless may be considered at this stage of the proceedings. See American Angus Ass'n v. Sysco Corp., 829 F.Supp. 807, 816 (W.D.N.C. 1992) ("Hearsay evidence may be considered in a preliminary injunction hearing.").
[2] "Trade dress" consists of "the total image of the product, and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques." Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 764 n. 1, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (quoting John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980 (11th Cir.1983)). Registration of trade dress is not required for protection under section 43(a). See 15 U.S.C. § 1125(a)(3); Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209-10, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000).
[3] Lance sought leave to file the Kluttz Declaration the day after the preliminary injunction hearing. Voortman does not oppose the Court's consideration of this Declaration. [Doc. 20 at 2].
[4] In light of this fact, for Voortman to suggest as it does in its brief that the Voortman Package "has been removed" and "is no longer in use" [Doc. 11 at 5, 6] is simply disingenuous.
[5] As a preliminary matter, Voortman argues that Lance has no rights in the trade dress it is seeking to enforce in this case, as the Archway trade dress at issue was not conveyed to Lance when it purchased the assets of Archway. [Doc. 11 at 7-8]. In response to Voortman's argument, Lance has submitted the Declaration of Joseph B.C. Kluttz, who represented Lance in the acquisition of the Archway assets. [Kluttz Decl., Doc. 20-2 at ¶ 2]. In his Declaration, Kluttz states that, in conjunction with the Asset Purchase Agreement between Archway and Lance, Archway executed an Assignment of Trademarks, which assigned to Lance all of Archway's "registered and unregistered domestic service marks, trademarks, trade dress, service mark applications, trademark applications, trade dress applications and trade names. . . ." [Id. at ¶ 6; Kluttz Decl. Ex. 2, Doc. 20-2 at 14] (emphasis added). In light of the Assignment of Trademarks executed by Archway, Voortman's argument that Lance does not own the unregistered trade dress at issue must be rejected.
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281 Kan. 732 (2006)
LAUREN K. WELCH, M.D.; ROGER EVANS, M.D.; JAMES C. MERSHON, M.D.; ZACK RAZEK, M.D.; BADR IDBEIS, M.D.; JEANETTE Z. HABASHY; DORIS UHLIG, MARGARET F. WRAY, and LARRY SPIKES, Appellants,
v.
VIA CHRISTI HEALTH PARTNERS, INC., a Kansas Corporation, and MR IMAGING CENTER, L.P., a Kansas Limited Partnership, Appellees.
No. 92,867.
Supreme Court of Kansas.
Opinion filed May 5, 2006.
*733 Kurt A. Harper, of Sherwood & Harper, of Wichita, argued the cause, and William E. Dakan, of the same firm, was with him on the briefs for appellants.
Gary L. Ayers, of Foulston Siefkin, LLP, of Wichita, argued the cause, and Martha Aaron Ross, of the same firm, was with him on the brief for appellees.
The opinion of the court was delivered by
DAVIS, J.:
The plaintiffs, 9 of 21 limited partners of defendant MR Imaging Center, L.P., brought suit against the defendants, Via Christi Health Partners, Inc., the general partner and majority limited partner, and MR Imaging Center, L.P., seeking a statutorily defined buyout price for their interests after Via Christi obtained a valuation of the business and caused the limited partnership agreement to be amended to permit a merger with a newly created limited liability company, MRI, LLC. Under the merger agreement, the plaintiffs were cashed out and the limited partnership was subsequently converted into a limited liability company, MR Imaging, LLC. The plaintiffs appeal the dismissal of their case on summary judgment. We transferred the case on our own motion pursuant to K.S.A. 20-3018(c).
Defendant MR Imaging Center, L.P., a Kansas limited partnership, was formed on or about September 17, 1985, and operated a medical imaging business. The plaintiff investors are Lauren K. Welch, M.D., Roger Evans, M.D., James C. Mershon, M.D., Zack Razek, M.D., Badr Idbeis, M.D., Jeanette Z. Habashy, Doris Uhlig, Margaret F. Wray, and Larry Spikes. Prior to July 31, 2003, the plaintiffs collectively held about 15% of the ownership interest in MR Imaging Center, L.P. The majority owner was the predecessor in interest to defendant Via Christi Health Partners, Inc. (Via Christi), which owned a combined interest of approximately 71% of the MR Imaging Center, L.P.
On July 15, 2003, Via Christi, as general partner of MR Imaging Center, L.P., sent a Notice of Special Meeting of the Partners of *734 MR Imaging Center, L.P., to the plaintiffs and the other limited partners. In that notice was information advising the limited partners that on July 31, 2003, the limited partners would be asked to approve an amendment to the Agreement of Limited Partnership and a merger agreement to allow for the merger of the limited partnership with a newly created entity, MRI, LLC, a Kansas limited liability company, which was organized by Via Christi on July 11, 2003. Via Christi was the controlling member and owned 64.2% of MRI, LLC immediately before the merger. The plaintiffs were not informed of the intentions of Via Christi or its actions in preparing for the forced buyout of the plaintiffs' interests prior to July 15, 2003.
Prior to the voting on July 31, 2003, the Limited Partnership Agreement for MR Imaging, L.P. did not permit the partnership to enter into a merger agreement on less than a unanimous vote. The proposed amendment allowed the limited partnership to merge with "`another general or limited partnership, corporation, or limited liability company'" without further approval of the minority limited partners.
The merger agreement provided that the general and limited partners would receive $78,408 per unit for the partners' respective ownership interests. Attached to the Notice of Special Meeting was a letter from Via Christi describing the transaction, with a copy of an independent valuation performed by Paragon Health Capital Corporation (Paragon) pursuant to a request from Via Christi on March 25, 2003. Paragon rendered an independent opinion of both fair market value and fair value (without marketability and minority discounts.) The $78,408 tendered to the partners for their partnership units was the "`fair value'" of those interests in an ongoing business without discounts for lack of marketability or the fact they were minority investors. The plaintiffs controverted this statement, arguing that their subsequent appraisal demonstrated the fair value to be $117,533 per unit.
The notification letter provided that Via Christi, as the general partner, intended to adopt the proposed amendment and approve the merger: "Because [Via Christi] owns a majority of the Units of MR Imaging, L.P. and has elected to vote in favor of the merger, *735 the outcome of the partnership meeting is certain, and, subject to the terms of the merger agreement, the merger will be effective as of July 31, 2003." The notice of special meeting similarly provided: "Via Christi Health Partners, Inc. as general partner and as a limited partner with sufficient Units to approve the merger, will vote to approve the amendment and the merger. Accordingly, while the other partners are entitled to vote on the approval of the amendment and the merger, their approval is not necessary."
On July 31, 2003, the amendment to the partnership agreement and the merger agreement were approved. Of the 20 minority investors, 6 attended either in person or by proxy and voted against the amendment and the merger, representing 11.88% of the total ownership, less than one-half of the 28.91% minority interest in MR Imaging Center, L.P. Five of those six are plaintiffs in this case, along with four other limited partners.
Pursuant to the notice of special meeting, the newly created entity, MRI, LLC (controlled and managed by Via Christi), was merged into MR Imaging Center, L.P. (also controlled and managed by Via Christi), which was then converted into MR Imaging, LLC. After the merger and conversion, Via Christi held a smaller share of partnership interests than it had prior to the merger and conversion. Its partnership interest went from approximately 71% to approximately 64%. Via Christi did not acquire the plaintiffs' partnership interests.
Pursuant to the merger agreement approved by both MR Imaging Center, L.P., and MRI, LLC, MR Imaging Center, L.P., tendered $78,408 per unit for all MR Imaging Center, L.P., units, including those held by Via Christi, those held by the other nonplaintiff owners, and those owned by the plaintiffs. Everyone received the same price, which was the fair value price determined by the valuation company, Paragon. The plaintiffs rejected this tender and filed the present lawsuit against Via Christi and MR Imaging Center, L.P.
In the petition, the plaintiffs alleged that: (1) Via Christi breached its fiduciary duties to the plaintiffs by eliminating the limited partners' ownership interests in MR Imaging Center, L.P., through a freeze-out merger; (2) the plaintiffs were entitled to a *736 determination of the buyout price for the plaintiffs' interests in the limited partnership pursuant to K.S.A. 56a-701, with interest thereon from July 31, 2003; and (3) the plaintiffs were entitled to attorney fees, appraiser and expert fees, and other costs.
The defendants filed a motion for summary judgment, arguing the plaintiffs were not entitled to statutory appraisal rights, attorney fees, appraiser and expert fees, and other expenses and that the plaintiffs had not established a breach of fiduciary duties. After a hearing, the district court granted the defendants' motion for summary judgment, reasoning in relevant part:
"3. Plaintiffs do not have statutory appraisal rights. Plaintiffs are not entitled to a determination of a buyout price pursuant to K.S.A. 2003 Supp. 56a-701, which does not apply to the merger in this case.
"4. Similarly, Plaintiffs are not entitled to attorney's fees, interest associated with a statutory appraisal, or the fees and expenses of their appraisers and experts, because K.S.A. 2003 Supp. 56a-701 is inapplicable.
"5. Plaintiffs' claimed damages are unliquidated and Plaintiffs are not entitled to prejudgment interest.
"6. Plaintiffs have not produced evidence to establish a dispute as to a material fact regarding their allegation that Via Christi Health Partners breached the duties contained in K.S.A. 2003 Supp. 56a-404.
"7. Defendants are entitled to judgment on Plaintiffs' claims regarding fiduciary duty, good faith, and fair dealing because Plaintiffs have not produced evidence to establish a dispute as to a material fact regarding specific acts of fraud, misrepresentation, or other items of misconduct.
"8. Because the parties have not deposed the appraiser (Paragon) utilized by Defendants to arrive at the valuation of Plaintiffs' minority interests, the Court finds that the sole remaining issue is whether or not the appraiser was independent.
"9. The parties have stipulated that if Paragon's appraisers were to testify, they would testify they were independent. Therefore, summary judgment may be granted as to this last issue left open by the trial court."
On appeal before this court, the plaintiffs challenge the district court's granting of defendants' motion for summary judgment finding the plaintiffs were not entitled to statutory appraisal rights and that the defendants did not breach fiduciary obligations owed to the plaintiffs. We apply the following standards of review:
"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is *737 entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, Syl. ¶ 1, 107 P.3d 1219 (2005).
Moreover, the interpretation of a statute is a question of law permitting unlimited review. State v. Legero, 278 Kan. 109, Syl. ¶ 1, 91 P.3d 1216 (2004).
Statutory Appraisal Rights
The plaintiffs argue the district court erred by failing to hold that they were dissociated partners under the Kansas Uniform Partnership Act (KUPA), K.S.A. 56a-101 et seq., entitled to specific buyout rights of their interests under K.S.A. 56a-701, which provides in relevant part:
"(a) If a partner is dissociated from a partnership without resulting in a dissolution and winding up of the partnership business under K.S.A. 56a-801, the partnership shall cause the dissociated partner's interest in the partnership to be purchased for a buyout price determined pursuant to subsection (b).
"(b) The buyout price of a dissociated partner's interest is the amount that would have been distributable to the dissociating partner under subsection (b) of K.S.A. 56a-807 if, on the date of dissociation, the assets of the partnership were sold at a price equal to the greater of the liquidation value or the value based on a sale of the entire business as a going concern without the dissociated partner and the partnership were wound up as of that date. Interest must be paid from the date of dissociation to the date of payment.
. . . .
"(i) A dissociated partner may maintain an action against the partnership, pursuant to subsection (b)(2)(ii) of K.S.A. 56a-405, to determine the buyout price of that partner's interest, any offsets under subsection (c), or other terms of the obligation to purchase. The action must be commenced within 120 days after the partnership has tendered payment or an offer to pay or within one year after written demand for payment if no payment or offer to pay is tendered. The court shall determine the buyout price of the dissociated partner's interest, any offset due under subsection (c), and accrued interest, and enter judgment for any additional payment or refund. If deferred payment is authorized under subsection *738 (h), the court shall also determine the security for payment and other terms of the obligation to purchase. The court may assess reasonable attorney's fees and the fees and expenses of appraisers or other experts for a party to the action, in amounts the court finds equitable, against a party that the court finds acted arbitrarily, vexatiously, or not in good faith. The finding may be based on the partnership's failure to tender payment or an offer to pay or to comply with subsection (g)."
The defendants respond that the plaintiffs are not dissociated partners and have no statutory appraisal rights under the KUPA, the Kansas Revised Uniform Limited Partnership Act (KRULPA), K.S.A. 56-1a01 et seq., or the Mixed Entity Merger statutes, K.S.A. 17-7701 et seq., because this case involves the merger of a limited partnership and a limited liability company. As this case involves the interplay of three different statutory schemes, we will examine each one in our resolution of the issues.
(1)Mixed Entity Merger Statutes (K.S.A. 17-7701 et seq.)
The plaintiffs argue that K.S.A. 17-7707(k) applies to the transaction in this case and preserves their right to a buyout price determination.
"Since 1995, Kansas law has contained specific and separate provisions authorizing and governing a merger or consolidation involving a domestic LLC and one or more other domestic or foreign business entities at least one of which is not an LLC." Hecker, The Kansas Revised Limited Liability Company Act, 69 J.K.B.A. 16, 38 (Nov./Dec. 2000). These provisions are discussed in K.S.A. 17-7701 et seq., the Mixed Entity Merger statutes. The following statutes are relevant to this case:
K.S.A. 2005 Supp. 17-7701(d) provides:
"(d) Subject to the provisions of this section, any merger or consolidation between one or more domestic corporations and any one or more constituent entities at least one of which is not a corporation, one or more domestic limited partnerships and any one or more constituent entities at least one of which is not a limited partnership, or one or more domestic limited liability companies and any one or more constituent entities at least one of which is not a limited liability company shall be governed by and subject to the provisions of K.S.A. 17-7701 through 17-7708, and amendments thereto."
K.S.A. 17-7703 provides:
*739 "Subject to the provisions of K.S.A. 17-7701 through 17-7708, any one or more domestic corporations may merge or consolidate into or with any one or more persons at least one of which is not a corporation, any one or more domestic limited partnerships may merge or consolidate into or with any one or more persons at least one of which is not a limited partnership, and any one or more domestic limited liability companies may merge or consolidate into or with any one or more persons at least one of which is not a limited liability company."
K.S.A. 17-7704(c) provides that each constituent entity shall enter into a written agreement of merger or consolidation, which includes "the manner and basis of converting the interests or shares of stock in each constituent entity in the merger or consolidation into interests, shares or other securities or obligations, the case may be, of the surviving entity, of the new entity or of any other person, or, in whole or in part, into cash or other property."
K.S.A. 2005 Supp. 17-7705(a)(2) provides that a constituent entity that is a domestic limited partnership shall have the agreement of merger or consolidation "approved by all general partners and by all of the limited partners unless otherwise provided in the certificate or agreement of limited partnership." In this case, the limited partnership agreement of MR Imaging Center, L.P., was amended immediately prior to the merger to expressly allow it to be approved by a two-thirds vote.
K.S.A. 17-7707(k), addressing the effects of consummation of merger or consolidation, provides: "Nothing in K.S.A. 17-7701 through 17-7708 shall abridge or impair any dissenter's appraisal shares or their equivalent rights that may otherwise be available to the members or shareholders or other holders of an interest, in any constituent entity." A constituent entity is defined as "each person that is a party to a merger or consolidation subject to K.S.A. 17-7701 through 17-7708." K.S.A. 17-7702(a).
The plaintiffs and the defendants seem to agree that the merger between MR Imaging Center, L.P., and MRI, LLC, is governed by this statutory authority. They disagree, however, whether this is the only statutory authority which can be utilized in assessing statutory appraisal or buyout rights to the limited partners in this case.
"The right to appraisal under Kansas law is purely statutory." Wichers v. Solomon Valley Feed Lot, Inc., 10 Kan. App. 2d 486, *740 487, 704 P.2d 383 (1985). Appraisal statutes should be liberally construed for the protection of the dissenting shareholders; however, "`a liberal construction does not call for an abandonment of orderly procedure prescribed by statute.' [Citation omitted.]" Vernon v. Commerce Financial Corp., 32 Kan. App. 2d 506, 509, 85 P.3d 211 (2004). In Wichers, the Kansas Court of Appeals held that dissenting shareholders exercising their appraisal rights were not entitled to an element of value they sought which was specifically excluded by the appraisal statute. 10 Kan. App. 2d at 487.
The defendants rely upon the doctrine of independent legal significance in support of their argument. "Under the doctrine of independent legal significance, action taken under one article of the Kansas Corporation Code is legally independent and its validity not dependent upon nor to be tested by the requirements of other unrelated sections under which the same result may be attained by different means." In re Hesston Corp., 254 Kan. 941, Syl. ¶ 7, 870 P.2d 17 (1994). In Hesston, this court found that merger is legally distinct from redemption under the Kansas Corporation Code, "in that Article 67 allows one or more corporations to merge or consolidate, and Article 64 governs redemption of the stock." 254 Kan. 941, Syl. ¶ 8.
The defendants argue the doctrine of independent legal significance prevents the plaintiffs from inferring any appraisal rights from the partnership-to-partnership merger statutes found in KUPA, specifically, K.S.A. 56a-906(e), because the exclusive authority for the merger in this case was under K.S.A. 17-7701 et seq., which does not provide for appraisal rights. Citing various merger statutes, the defendants point out that no appraisal rights exist for the merger of two limited partnerships under K.S.A. 56-1a609 of KRULPA and that appraisal rights must be contained in the operating or merger agreements for the merger of two limited liability corporations under K.S.A. 2005 Supp. 17-7682. They contend it is the prerogative of the legislature to provide appraisal rights for one form of merger but not for another, and each entity merger must comply with the strictures of the authorizing statute and is limited to the remedies found in the authorizing statute.
*741 The plaintiffs counter that the doctrine of independent legal significance requires, rather than precludes, that plaintiffs be granted their buyout price remedies under KUPA. They reason that if Via Christi performed this merger under the Mixed Entity Merger statutes, then the entire statutory framework for the merger applies. They contend the defendants' argument disregards the express language of the Mixed Entity Merger statutes, which preserves "any dissenter's appraisal shares or their equivalent rights that may otherwise be available to the members or shareholders or other holders of an interest, in any constituent entity." (Emphasis added.) See K.S.A. 17-7707(k).
None of the other statutory provisions, as discussed below, provide for the merger of a limited partnership with a limited liability company. As such, the parties are correct that K.S.A. 2005 Supp. 17-7701(d) and K.S.A. 17-7703 provide the statutory authority for the merger in this case, and the parties are bound by that authority pursuant to the independent legal significance doctrine. Although these statutes do not themselves grant statutory appraisal or buyout rights, the plaintiffs are correct that the doctrine of independent legal significance would not preclude looking outside of the Mixed Entity Merger statutes based upon the plain language of K.S.A. 17-7707(k), which preserves any appraisal or equivalent rights which may otherwise be available to the limited partners in this case. In fact, the defendants seem to acknowledge that this doctrine does not preclude looking beyond K.S.A. 17-7701 et seq., as they concede that subsection (k) would not abridge appraisal rights that might exist in the operating or merger agreement of a limited liability company under K.S.A. 2005 Supp. 17-7682. Thus, our analysis shifts to whether the provisions of KRULPA or KUPA provide for statutory appraisal or buyout rights to the limited partner plaintiffs in this case.
(2) Kansas Revised Uniform Limited Partnership Act (K.S.A. 56-1a01 et seq.)
The Kansas Revised Uniform Limited Partnership Act (KRULPA) is based upon the Revised Uniform Limited Partnership Act of 1976 (RULPA), 6 U.L.A. 220 (2003), and the Delaware *742 Revised Uniform Limited Partnership Act (Del. Code Ann. 6, § 15-101 et seq. [2005]) and applies to all domestic limited partnerships formed after January 1, 1984. See K.S.A. 56-1a603(a); K.S.A. 56-1a01 et seq., Revisor's Note to KRULPA, Article 1a; Temple v. White Lakes Plaza Assoc., Ltd., 15 Kan. App. 2d 771, 777, 816 P.2d 399 (1991).
"The Uniform Partnership Act and case law developed thereunder have been applied to limited partnerships. 59A Am. Jur. 2d, Partnerships § 1235. Additionally, RULPA itself provides that for cases not covered by its provisions, the Kansas Uniform Partnership Act (KUPA) . . . should be applied. K.S.A. 56-1a604." Temple, 15 Kan. App. 2d at 778. See K.S.A. 56-1a604 ("In any case not provided for in the Kansas revised limited partnership act, the provisions of the Kansas uniform partnership act [K.S.A. 56a-101 et seq., and amendments thereto] shall govern.").
The plaintiffs argue that the defendants have sought to shift this case from a question of rights that limited partners have upon their involuntary dissociation from a partnership to a question of appraisal rights in the event of the merger. They argue the defendants frame the case as being limited to rights granted by certain Kansas Corporation Code provisions, while giving no recognition to the rights expressly reserved to dissociated partners under applicable partnership law. As such, they claim it is necessary to examine the provisions of KRULPA and KUPA.
The plaintiffs continue that although KRULPA contains provisions for the withdrawal of a limited partner, the dissolution and winding up of a limited partnership, and the merger of a domestic limited partnership with or into one or more limited partnerships, it does not provide for the dissociation of a limited partner, the right of a dissociated partner to a determination of the buyout price of the partner's interest, or the merger of a limited partnership with any type of entity other than another limited partnership. As such, they contend the provisions of KUPA apply pursuant to K.S.A. 56-1a604.
The defendants contend that one does not reach or use K.S.A. 56a-601 (KUPA) for dissociation resulting from withdrawal because *743 withdrawal of a limited partner is specifically provided for in K.S.A. 56-1a353(b) (KRULPA):
"A limited partner may withdraw from a limited partnership at the time or upon the happening of events specified in writing in the partnership agreement and in accordance with the partnership agreement. If the agreement does not specify in writing the time or the events upon the happening of which a limited partner may withdraw, the limited partner shall have no right to withdraw."
Additionally, K.S.A. 56-1a354 provides:
"Except as provided in K.S.A. 56-1a351 through 56-1a358, upon withdrawal any withdrawing partner is entitled to receive any distribution to which the partner is entitled under the partnership agreement. If not otherwise provided in the agreement, the withdrawing partner is entitled to receive, within a reasonable time after withdrawal, the fair value of the partner's interest in the limited partnership as of the date of withdrawal, based upon the partner's right to share in distributions from the limited partnership." (Emphasis added.)
Our review of these statutes reveals that the defendants' argument is without merit. As the plaintiffs point out in their reply brief, the plaintiffs never sought to withdraw from the limited partnership, such withdrawal was not permitted by the limited partnership agreement or K.S.A. 56-1a353(b), and their claims were not based upon the right to withdraw or the rights available to a limited partner who withdraws from the limited partnership. Rather, the question to be resolved under this issue is whether KRULPA provides any appraisal or buyout rights to involuntarily dissociated limited partners of a limited partnership following a merger with a limited liability company.
KRULPA does not provide for the rights of a dissociated limited partner, nor does it provide for the merger of a limited partnership with anything other than another limited partnership: "Pursuant to an agreement, a domestic limited partnership may merge or consolidate with or into one or more limited partnerships formed under the laws of this state or any other state, with such limited partnership as the agreement shall provide being the surviving or resulting limited partnership." K.S.A. 56-1a609(a). As the defendants point out, this lone merger statute does not provide for appraisal rights, payments for fair value, payment of interest, appraiser fees, expert fees, or attorney fees. Nevertheless, it is *744 inapplicable to this case involving the merger of a limited partnership with a limited liability company.
Further support for the conclusion that KRULPA does not provide for the rights of dissociated limited partners upon a merger is found by examining the 2001 revisions to RULPA. In 2001, the Drafting Committee for the New Uniform Limited Partnership Act dramatically revised RULPA to create a new "stand alone" act which was "de-linked" from both UPA and RUPA. The Committee explained that the stand alone act was preferable in part because the consequences of linkage were not always clear and it would eliminate confusion as to which issues were solely subject to RULPA and which required reference to RUPA. See Uniform Limited Partnership Act (2001) (ULPA), 6A U.L.A. 2, Prefatory Note, pp. 3-4 (2003).
In comparing RULPA with the new 2001 limited partnership act, the Committee specifically recognized that RULPA did not address limited partner involuntary dissociation, but the new Act provides a lengthy list of causes, taken with some modification from RUPA § 601 (see K.S.A. 56a-601). Contrary to the current version of KRULPA, the 2001 ULPA specifically provides that a limited partner is dissociated due to "the limited partnership's participation in a conversion or merger under [Article] 11, if the limited partnership: . . . (B) is the converted or surviving entity but, as a result of the conversion or merger, the person ceases to be a limited partner." ULPA § 601(b)(10)(B), 6A U.L.A. at 72.
Further, the 2001 ULPA specifically permits the merger of a limited partnership with one or more other constituent entities, and the plan of merger must be consented to by all the partners of a constituent limited partnership. See ULPA §§ 1106(a) and 1107(a), 6A U.L.A. at 110-11. Interestingly, the Comment to § 1107(a) provides in relevant part: "[T]he partnership agreement may state a different quantum of consent or provide a completely different approval mechanism. Varying this subsection's rule means that a partner might be subject to a merger (including a `squeeze out' merger) without consent and with no appraisal remedy." 6 U.L.A. at 111.
*745 While limited partners may not always be entitled to appraisal rights under the 2001 ULPA, the current version of KRULPA applicable to this case still remains linked to RUPA and does not express an opinion regarding whether appraisal rights exist upon the involuntary dissociation of limited partners following the merger of a limited partnership with an entity other than another limited partnership. Although KRULPA does provide that a withdrawing partner is entitled to the fair value of the partner's interest in the limited partnership as of the date of withdrawal, the absence of any authority concerning the appraisal rights of an involuntarily dissociated partner after a merger requires us to examine the provisions of KUPA pursuant to K.S.A. 56-1a604.
(3) Kansas Uniform Partnership Act (K.S.A. 56a-101 et seq.)
As discussed above, the failure of RULPA to provide statutory authority regarding the dissociation and buyout rights of a limited partnership suggests that this court must examine the provisions of the KUPA. The prefatory note to the 1997 enactment of the Uniform Partnership Act (UPA) discussing the interplay between RUPA and RULPA supports this conclusion:
"Partnership law no longer governs limited partnerships pursuant to the provisions of RUPA itself. First, limited partnerships are not `partnerships' within the RUPA definition. Second, UPA Section 6(2), which provides that the UPA governs limited partnerships in cases not provided for in the [RULPA] has been deleted. No substantive change in result is intended, however. Section 1105 of the RULPA already provides that the UPA governs in any case not provided for in RULPA, and thus the express linkage in RUPA is unnecessary. Structurally, it is more appropriately left to RULPA to determine the applicability of RUPA to limited partnerships. It is contemplated that the Conference will review the linkage question carefully, although no changes in RULPA may be necessary despite the many changes in RUPA." Uniform Partnership Act (1997) (RUPA), 6 (Pt. 1) U.L.A. 5, Prefatory Note, p. 6 (2001).
The Kansas Uniform Partnership Act, K.S.A. 56a-101 et seq. was enacted in 1998. Halley v. Barnabe, 271 Kan. 652, 660, 24 P.3d 140 (2001). KUPA defines a partnership as "an association of two or more persons to carry on as co-owners a business for profit formed under K.S.A. 56a-202, predecessor law, or comparable law of another jurisdiction." K.S.A. 56a-101(f). It defines a limited liability *746 partnership as "a partnership that has filed a statement of qualification under K.S.A. 56a-1001 and does not have a similar statement in effect in any other jurisdiction." K.S.A. 56a-101(e).
The plaintiffs argue that they are dissociated limited partners under both K.S.A. 56a-601(c) and K.S.A. 56a-906(e), and because the dissociation did not result in the dissolution and winding up of the partnership business under K.S.A. 56a-801, they are thus entitled to the statutory buyout rights, attorney fees, the fees and expenses of their appraisers and experts, and other costs as set forth in K.S.A. 56a-701.
(a) K.S.A. 56a-601(c)
The plaintiffs argue they were dissociated from the limited partnership under K.S.A. 56a-601, which sets forth a list of events causing a partner's dissociation. Specifically, the plaintiffs contend they were dissociated because the limited partnership agreement was amended by Via Christi for the specific purpose of squeezing out or expelling the plaintiffs under K.S.A. 56a-601(c), "the partner's expulsion pursuant to the partnership agreement." The defendants counter that "expulsion" is not defined as a "squeeze-out merger" under KUPA, and nothing in the limited partnership agreement or the statute suggests that an expulsion under KUPA took place. The defendants' argument has merit.
The parties do not dispute that prior to any amendments, the original limited partnership agreement did not provide for the expulsion of limited partners. In contrast, it did set forth the procedure for removing the general partner for cause. Although the limited partnership agreement was amended, it merely provided that the general partners shall not take any of the following actions without the prior written consent of the holders of two-thirds of the limited partners' partnership interest, including: "Cause the Partnership to merge with another general or limited partnership, corporation, or limited liability company."
Despite the plaintiffs' insistence otherwise, this amendment relates to the ability of the partnership to merge with another entity and does not address the expulsion of its limited partners. Although this amendment permitted a merger which ultimately resulted in *747 the plaintiffs having their interests bought out in the surviving partnership, this was merely a side effect of the specific merger authority granted by the amendment to the partnership agreement. As argued by the defendants, the enactment of this amendment would not have permitted the expulsion of any one or more of the limited partners on its own. In the absence of any express expulsion authority in the partnership agreement or argument concerning the existence of other statutory factors for expulsion listed in K.S.A. 56a-601(d) and (e), the plaintiffs have not demonstrated that they were expelled from the partnership under K.S.A. 56a-601 so as to be considered dissociated partners subject to buyout rights under K.S.A. 56a-701.
Our conclusion renders the defendants' argument concerning withdrawal under K.S.A. 56a-601 moot. Nevertheless, we note that their withdrawal argument has no bearing on whether K.S.A. 56a-601 is applicable to this case because, as discussed above, the plaintiffs do not claim to be dissociated by withdrawal under K.S.A. 56a-601(a) nor would they have the right to withdraw under KRULPA, K.S.A. 56-1a353(b).
(b) K.S.A. 56a-906(e)
The plaintiffs next contend that they are dissociated partners under K.S.A. 56a-906(e), regarding the effect of a merger, which provides:
"A partner of a party to a merger who does not become a partner of the surviving partnership or limited partnership is dissociated from the entity, of which that partner was a partner, as of the date the merger takes effect. The surviving entity shall cause the partner's interest in the entity to be purchased under K.S.A. 56a-701 or another statute specifically applicable to that partner's interest with respect to a merger. The surviving entity is bound under K.S.A. 56a-702 by an act of a general partner dissociated under this subsection, and the partner is liable under K.S.A. 56a-703 for transactions entered into by the surviving entity after the merger takes effect."
The RUPA Official Comment to § 906 provides in relevant part:
"Section 906 states the effect of a merger on the partnerships that are parties to the merger and on the individual partners.
. . . .
*748 "Subsection (e) provides for the disassociation of a partner of a party to the merger who does not become a partner in the surviving entity. The surviving entity must buy out that partner's interest in the partnership under Section 701 or other specifically applicable statute. If the state limited partnership act has a dissenter's rights provision providing a different method of determining the amount due a disassociating limited partner, it would apply, rather than Section 701, since the two statutes should be read in pari materia." RUPA § 906, cmt. 6 (Pt. 1) U.L.A. at 227.
The defendants counter that K.S.A. 56a-906 is not applicable to this case for essentially three reasons: (1) K.S.A. 56a-601 sets forth the exclusive list of dissociating events under KUPA; (2) rights under K.S.A. 56a-906(e) are dependent upon claims under K.S.A. 56a-905 which were not raised by the plaintiffs in this case; and (3) K.S.A. 56a-905 only provides for mergers between general partnerships and other general or limited partnerships. These arguments will each be considered in turn.
In arguing that K.S.A. 56a-601 sets forth the exclusive list of dissociating events under KUPA, the defendants rely primarily upon the following relevant portion of the RUPA Official Comment to § 601:
"RUPA dramatically changes the law governing partnership breakups and dissolution. An entirely new concept, `dissociation,' is used in lieu of the UPA term `dissolution' to denote the change in the relationship caused by a partner's ceasing to be associated in the carrying on of the business. . . . The entity theory of partnership provides a conceptual basis for continuing the firm itself despite a partner's withdrawal from the firm.
. . . .
"Section 601 enumerates all of the events that cause a partner's dissociation. Section 601 is similar in approach to RULPA Section 402, which lists the events resulting in a general partner's withdrawal from a limited partnership." (Emphasis added.) RUPA § 601, cmt. 1, 6 (Pt. 1) U.L.A. at 164.
The plaintiffs argue that despite the language of this Comment, the express language of K.S.A. 56a-906(e) and K.S.A. 56a-601 provides otherwise. They contend K.S.A. 56a-906(e) clearly provides that dissociation occurs in a merger where a partner of a party to the merger does not become a partner of the surviving partnership or limited partnership. Additionally, they point out that the statutory language of K.S.A. 56a-601 does not describe the causes of a *749 partner's dissociation as "all of the events" or the "only events" so as to be considered the exclusive list of events.
Examination of these provisions of RUPA provides support for both arguments. K.S.A. 56a-601, events causing partner's dissociation, fall under Article 6 of RUPA, which is specifically titled "Partner's Dissociation." 6 (Pt. 1) U.L.A. at 163. In contrast, the dissociation authority the plaintiffs are seeking to apply under K.S.A. 56a-906(e) falls under Article 9 of RUPA, titled "Conversions and Mergers." 6 (Pt. 1) U.L.A. at 213. It makes sense, as set forth by the plain language of Official Comment to § 601, that all of the events causing a partner's dissociation under RUPA would be found under Article 6 of RUPA.
While acknowledging the persuasiveness of the defendants' argument, we note that Kansas has not specifically adopted the Official Comment to § 601, and as the plaintiffs point out, the statutory language of K.S.A. 56a-601 does not expressly set forth that these are the exclusive events causing a partner's dissociation. See K.S.A. 56a-601 ("A partner is dissociated from a partnership upon the occurrence of any of the following events."). As dissociation by merger is at least contemplated by K.S.A. 56a-906(e) but not addressed by K.S.A. 56a-601, we will consider whether K.S.A. 56a-906(e) is applicable to the facts of this case.
The defendants argue that the applicability to a case of the effect of merger statute, K.S.A. 56a-906(e), is dependent upon the applicability of the preceding statute, K.S.A. 56a-905, merger of partnerships, which provides: "Pursuant to a plan of merger approved as provided in subsection (c), a partnership may be merged with one or more partnerships or limited partnerships." The statute sets forth what the plan of merger must set forth, how the plan of merger must be approved, the opportunities for amendment and abandonment of the plan, and the effective date of the merger. See K.S.A. 56a-905(a). As this case involves the merger of a limited partnership with a limited liability company and the plaintiffs did not assert any rights under K.S.A. 56a-905, the defendants argue that the plaintiffs' may not claim any dissociation rights under K.S.A. 56a-906(e).
*750 The plaintiffs counter that K.S.A. 56a-906(e) is not, strictly speaking, limited to partnership mergers, but rather the explicit language of the statute deals with "[a] partner of a party to a merger who does not become a partner of the surviving partnership or limited partnership." They continue that irrespective of whether K.S.A. 56a-906(e) is applicable only to mergers involving a partnership and one or more partnerships or limited partnerships, the policy of treating partners who do not become partners of the surviving partnership or limited partnership as dissociated and entitled to the remedies provided under K.S.A. 56a-701 is clearly stated.
In resolving this argument, we apply the following rules of statutory construction:
"The fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs."
"An appellate court must consider all of the provisions of a statute in pari materia rather than in isolation, and these provisions must be reconciled, if possible, to make them consistent and harmonious. As a general rule, statutes should be interpreted to avoid unreasonable results." State v. Legero, 278 Kan. 109, Syl. ¶¶ 3, 4, 91 P.3d 1216 (2004).
Application of the above rules support the defendants' position. Although a limited partner could technically be considered a "partner of a party to a merger," the plaintiffs' argument would require this court to take K.S.A. 56a-906(e) out of context in order to establish an independent basis for dissociation. Article 9 of RUPA deals explicitly with conversions and mergers of partnerships: K.S.A. 56a-901 defines the terms "general partner," "limited partner," "limited partnership," and "partner"; K.S.A. 56a-902 deals with the conversion of a partnership to a limited partnership; K.S.A. 56a-903 deals with the conversion of a limited partnership to a partnership; and K.S.A. 56a-905 involves the merger of partnerships with one or more partnerships or limited partnerships.
It logically follows that K.S.A. 56a-906, dealing with the effect of merger, would be applicable to the merger of a general partnership with another form of partnership set forth in K.S.A. 56a-905 and not to the merger of a limited partnership with a limited liability company as occurred in this case. This conclusion is further supported by K.S.A. 56a-908, which provides: "This article is not *751 exclusive. Partnerships or limited partnerships may be converted or merged in any other manner provided by law." As discussed previously, the authority for the merger in this case came exclusively from the Mixed Entity Merger statutes, K.S.A. 2005 Supp. 17-7701(d) and K.S.A. 17-7703. As the plaintiffs did not and could not argue that the merger in this case occurred under the authority of K.S.A. 56a-905, which deals exclusively with the merger of partnerships, it cannot take advantage of the effect of merger statute, K.S.A. 56a-906(e). As such, they are not entitled to the buyout rights set forth in K.S.A. 56a-701(b).
Additionally, we acknowledge that even if K.S.A. 56a-906(e) was applicable to mergers between a limited partnership and a limited liability company, it is still questionable whether subsection (e) actually provides an independent basis for dissociation upon a merger. Subsection (e) is more concerned with setting the date of dissociation for calculation of buyout benefits under K.S.A. 56a-701(b) rather than establishing a cause for dissociation. See K.S.A. 56a-906(e) ("A partner of a party to a merger who does not become a partner of the surviving partnership or limited partnership is dissociated from the entity, of which that partner was a partner, as of the date the merger takes effect.").
(4) Conclusion Regarding Statutory Appraisal Rights
In conclusion, the statutory authority for the merger in this case between the limited partnership MR Imaging Center, L.P. and MRI, LLC did not come from KRULPA or KUPA but rather came exclusively from K.S.A. 2005 Supp. 17-7701(d) and K.S.A. 17-7703. Although the Mixed Entity Merger statutory scheme does not explicitly provide for statutory appraisal rights, the doctrine of independent legal significance does not prevent this court from looking outside these statutes because K.S.A. 17-7707(k) preserves any "appraisal shares or their equivalent rights that may otherwise be available to the members or shareholders or other holders of an interest, in any constituent entity."
Although KRULPA contains provisions for the withdrawal of a limited partner, the dissolution and winding up of a limited partnership, and the merger of a domestic limited partnership with or *752 into one or more limited partnerships, it does not provide for the dissociation of a limited partner, the right of a dissociated partner to a determination of the buyout price of the partner's interest, or the merger of a limited partnership with any type of entity other than another limited partnership. As this scenario is not provided for under KRULPA, "the provisions of the Kansas uniform partnership act (K.S.A. 56a-101 et seq., and amendments thereto) shall govern." K.S.A. 56-1a604.
The plaintiffs in this case are not dissociated partners under K.S.A. 56a-601(c) because they were not expelled from the limited partnership by the amendment to the partnership agreement. Likewise, they were not dissociated partners under K.S.A. 56a-906(e) because that statute is related to mergers between partnerships as provided in K.S.A. 56a-905 when the statutory scheme is viewed as a whole. Thus, the plaintiffs have not established that they were dissociated partners and the district court correctly found that they were not entitled to the statutory buyout rights or to attorney fees, interest associated with a statutory appraisal, or the fees and expenses of their appraisers and experts under K.S.A. 56a-701.
Breach of Fiduciary Duties
In granting summary judgment on the plaintiffs' breach of fiduciary duties claims, the district court reasoned that the plaintiffs did not produce evidence to establish a dispute as to a material fact regarding their allegation that Via Christi breached the fiduciary duties contained in K.S.A. 56a-404; that the defendants were entitled to judgment on the plaintiffs' claims regarding fiduciary duty, good faith, and fair dealing because plaintiffs did not produce evidence to establish a dispute as to a material fact regarding specific acts of fraud, misrepresentation, or other items of misconduct; and that the appraiser employed by the defendants to value the plaintiffs' minority interests was independent.
On appeal, the plaintiffs argue that the facts of this case demonstrated both a breach of the fiduciary duty of loyalty as defined in K.S.A. 56a-404(b) and a breach of the duty of good faith and fair dealing contained in K.S.A. 56a-404(d). In the absence of case *753 law involving freeze-out mergers involving Kansas limited partners, the plaintiffs contend that the defendants' actions were also inconsistent with the fiduciary duties set forth in cases involving corporate cash-out or squeeze-out mergers and suggest that they have met the corresponding burdens of proof under these persuasive cases so as to preclude summary judgment in this case and entitle them to a judicial review of the buyout price of their interests in the limited partnership.
We first note that although the fiduciary duties set forth in K.S.A. 56a-404 are part of KUPA, the parties are correct that they are applicable to this case involving a limited partnership under KRULPA. K.S.A. 56-1a253 provides: "Except as provided in this act or in the partnership agreement, a general partner of a limited partnership has the rights and powers and is subject to the restrictions of a partner in a partnership without limited partners." The limited partnership agreement in this case provided in part that the general partner shall conduct the partnership in accordance with KRULPA, and it acknowledged the general partner's fiduciary duties: "Each General Partner shall indemnify and save harmless the Partnership from any loss or damage incurred by the Partnership by reason of the proven gross negligence, willful misconduct, or breach of fiduciary duty by it."
As KRULPA incorporates the provisions of KUPA in cases not provided for by KRULPA, the fiduciary duties in this case are thus found under K.S.A. 56a-404, general standards of partner's conduct. See K.S.A. 56-1a604 ("In any case not provided for in the Kansas revised limited partnership act, the provisions of the Kansas uniform partnership act [K.S.A. 56a-101 et seq., and amendments thereto] shall govern.").
A. Kansas Corporate Law Cases
Before addressing the plaintiffs' specific arguments under K.S.A. 56a-404, we first address the parties' arguments involving fiduciary duties and burdens of proof set forth in Kansas corporate cases. First, the defendants' argue that Via Christi had a right to amend the limited partnership agreement and proceed with the merger, and that under Kansas common law, the freeze-out merger, in and *754 of itself, did not constitute a breach of a fiduciary duty. As no Kansas cases have considered whether such a freeze-out merger between a limited partnership and a limited liability company involves a breach of a fiduciary duty, the defendants point to Kansas cases which have approved similar freeze-out mergers in a corporate context.
In Arnaud v. Stockgrowers State Bank, 268 Kan. 163, 164, 992 P.2d 216 (1999), this court considered the following certified question: "`Is it proper for a corporation to determine the "fair value" of a fractional share pursuant to K.S.A. § 17-6405 by applying minority and marketability discounts when the fractional share resulted from a reverse stock split intended to eliminate the minority shareholder's interest in the corporation?'" In resolving the issue, we approved the following procedure:
"This court has previously approved the procedure that the defendants have used to force the buy out of the plaintiffs' minority share holdings. See Achey v. Linn County Bank, 261 Kan. 669, 931 P.2d 16 (1997) (allowing the corporation to initiate a reverse stock split and force the buy-out of the minority shareholders' stock in order to prevent any fractional share holdings). We did not, however, discuss whether minority or marketability discounts should be applied in determining the `fair value' that was to be paid to the minority shareholders. [Citation omitted.]" 268 Kan. at 165.
In In re Hesston Corp., 254 Kan. 941, 870 P.2d 17 (1994), following a cash-out merger, the dissenting shareholders argued the corporate board of directors breached its fiduciary duty to them by failing to adequately and carefully consider all factors relevant to an informed decision whether to cash them out. Noting the established rule that a director of a corporation owes a high fiduciary duty to the other stockholders of the corporation, Hesston stated in relevant part:
"`In the context of acquisitions, divestitures, and other reorganizations, both management and majority shareholders owe to the corporation and to the minority shareholders thereof a duty to exercise good faith, care, and diligence to make the property of the corporation produce the largest possible amount, to protect the interest of the holders of minority stock, and to secure and pay over to them their just proportion of the income and of the proceeds of corporate property. These duties have particular emphasis in the context of a "cash-out" or "freeze-out" *755 merger, which is a merger effected for no valid business purpose and resulting in the elimination of one or more minority shareholders. . . .
"`In cases of corporate merger, there is no violation of fiduciary duty owed by dominant stockholders to public stockholders if there has been neither fraud, selfdealing nor price manipulation, and alternatives afforded to public shareholders are a fair price fairly determined or a statutory right to appraisal.'" 254 Kan. at 982-83 (quoting 19 Am. Jur. 2d, Corporations § 2566).
Under the facts of Hesston, we affirmed the district court's conclusion that no breach of fiduciary duty had occurred despite the corporate board of directors' failure to obtain an independent fairness evaluation regarding the merger agreement, in part because it was offset by the statutory right of appraisal which the minority shareholder's had already pursued. See 254 Kan. at 985, 990-92. Additionally relevant to this case, the district court had noted: "`It is not necessary for a corporation to show a "valid corporate purpose" for eliminating minority stockholders. The business purpose requirement was eliminated in Delaware in Weinberger v. UOP, 457 A.2d 701, 711 (Del. 1983).'" 254 Kan. at 984.
We note that these cases do not establish that a freeze-out merger involving corporations is never a breach of a fiduciary duty. While Arnaud and Achey approved the freeze-out procedure in the corporate context, they did not consider whether the parties' actions constituted a breach of a fiduciary duty. Hesston does suggest that some freeze-out mergers may not breach fiduciary duties when there is no evidence of fraud, self-dealing or price manipulation, and when a fair price is fairly determined or a statutory right to appraisal is available. However, while self-dealing is clearly present in this case, it is important to recognize the distinction under the KUPA statute providing that pursuing one's own self-interest is not per se a breach of a fiduciary duty. See K.S.A. 56a-404(e) ("A partner does not violate a duty or obligation under this act or under the partnership agreement merely because the partner's conduct furthers the partner's own interest.").
This self-dealing distinction is also important in light of the numerous corporate cases relied upon by the plaintiffs in this case. A majority of the cases cited establish that Kansas law holds fiduciaries to a strict standard. Thus, plaintiffs argue that based upon *756 this strict standard, the burden of proof in the circumstances of the case we now consider should have been shifted to the defendants.
Before considering these corporate cases, we first note that reliance upon corporate case law in an attempt to resolve questions arising under a merger between a limited partnership and a limited liability company is not without problems. While there are similarities, before reliance may be had, accommodation must be made for important differences. One important difference noted above involves K.S.A. 56a-404(e), authorizing a partner to pursue his or her own interest. The RUPA Official Comment to § 404 notes that "[a] partner as such is not a trustee and is not held to the same standards as a trustee." RUPA § 404, cmt. 5, 6 (Pt. 1) U.L.A. at 146. The Comment further notes "[t]hat admonition has particular application to the duty of loyalty and the obligation of good faith and fair dealing. It underscores the partner's rights as an owner and principal in the enterprise, which must always be balanced against his [or her] duties and obligations as an agent and fiduciary." RUPA § 404, cmt. 5, 6 (Pt. 1) U.L.A. at 146. In the corporate field, a member of the board of directors is a true trustee subjecting such director in his or her dealing with minority shareholders to the closest scrutiny.
In Hotchkiss v. Fischer, 136 Kan. 530, 16 P.2d 531 (1932), this court found that when a director purchased corporate shares from a shareholder, "such transactions must be subjected to the closest scrutiny, and unless conducted with the utmost fairness the wronged shareholder may invoke proper remedy." 136 Kan. at 538. However, it is important to note in this case, the general partner, Via Christi did not purchase the plaintiffs' limited partnership interests. It did, however, have the partnership valued through an appraisal and then paid all the partners including itself the appraised value of their respective interests in the partnership. Thus, each limited partner and the general partner were paid the same amount for each unit of partnership owned at the time of merger.
In Sampson v. Hunt, 222 Kan. 268, 564 P.2d 489 (1977), we recognized that a director of a corporation owes a high fiduciary duty to its stockholders and that
*757 "`[w]hen two parties occupy to each other a confidential or fiduciary relation, and a sale is made by one to the other, equity raises a presumption against the validity of the transaction. To sustain it the buyer must show affirmatively that the transaction was conducted in good faith, without pressure or influence on his part, and with express knowledge of the circumstances and entire freedom of action on the part of the seller.'" 222 Kan. at 271 (quoting Stewart v. Harris, 69 Kan. 498, Syl. ¶ 2, 77 Pac. 277 ([1904]).
The court concluded that "where knowledge of facts affecting the value or price of stock comes to an officer or director of a corporation by virtue of his office or position, he is under a fiduciary duty to disclose such facts to other stockholders before dealing in company stock with them." 222 Kan. at 272. Again, it must be noted that Via Christi did not purchase the interests of the limited partner plaintiffs. Plaintiffs and defendant Via Christi received the same amount for each unit of partnership owned by them. Thus, the partnership was dissolved through merger into the limited liability company.
In Newton v. Hornblower, Inc., 224 Kan. 506, 582 P.2d 1136 (1978), the plaintiff corporate director claimed the defendant corporation, limited partnership, and corporate directors breached their fiduciary duties to the corporation, the limited partnership, and the plaintiff by making unauthorized expenditures of corporate and partnership funds to the benefit of the individual defendants and to the detriment of the corporation, the partnership, and the plaintiff. In setting forth the burden of proof, we stated:
"Any unfair transaction undertaken by one in a fiduciary relationship may result in liability for unjust enrichment of the fiduciary. Where the fairness of a fiduciary transaction is challenged, the burden of proof is upon the fiduciary to prove by clear and satisfactory evidence that such transaction was fair and done in good faith." 224 Kan. 506, Syl. ¶ 9.
In the case we now consider, there is no allegation that unauthorized expenditures were made from the partnership to diminish the value paid to the minority interests.
In Richards v. Bryan, 19 Kan. App. 2d 950, 879 P.2d 638 (1994), the minority shareholder in a closely held corporation brought suit against the majority shareholders claiming in part that they breached their fiduciary duty to him by making it appear that the *758 corporation was unprofitable to avoid payment of additional compensation. The court clarified the burden of proof set forth in Newton by pointing to Cookies Food Products, Inc. v. Lakes Warehouse, 430 N.W.2d 447 (Iowa 1988), where the plaintiff was required to make out a prima facie case of self-dealing before the burden shifted to the defendant to show the actions were done in good faith. Under the facts of Richards, the Court of Appeals found the district court erred in granting summary judgment in favor of the majority shareholders once the plaintiff had established a prima facie showing of breach of duty, effectively requiring the minority shareholder to prove his entire case at the summary judgment stage rather than shifting the burden of proof to the majority shareholders. 19 Kan. App. 2d at 966-67.
We recognize that the K.S.A. 56a-404(e) provisions of RUPA do not authorize a partner to pursue his or her own interests without regard to the partnership and other partners. Professor Edwin W. Hecker, Jr., in discussing 56a-404(e), noted:
"This provision does not state that a partner may always further his or her self-interest with impunity. That would directly contradict, and in fact repeal, the duty of loyalty. Rather, it simply states that `merely' because certain conduct furthers the partner's own interest is insufficient, in and of itself, to establish a violation of the duty of loyalty. The Official Comments explain that a partner is not a technical trustee and is not held to the same strict standards of self-abnegation as a trustee. Thus, this provision is an attempt to balance the partner's rights as owner and principal in the business with his or her duties and obligations as fiduciary and agent. That balance may be struck by recognizing a partner's right to act in his or her own self-interest as long as the action follows full disclosure and is fair to the partnership and the other partners." Hecker, The Kansas Revised Uniform Partnership Act, 68 J.K.B.A. 16, 32 (Oct. 1999).
Review of the corporate self-interest cases cited by the parties in this case suggests that the plaintiffs must establish something above and beyond self-interest or self-dealing in this case involving a limited partnership in order to shift the burden of proof regarding the fairness of the transaction to the defendants. Under Richards, this may be accomplished by establishing a prima facie case of a breach of a fiduciary duty under K.S.A. 56a-404. Alternatively, the plaintiff must establish specific acts of fraud, misrepresentation, or *759 other items of misconduct as set forth in Weinberger v. UOP, Inc., 457 A.2d 701, 703 (Del. 1983). Each will be discussed in turn.
B. Fiduciary Duties of Partners
K.S.A. 56a-404, with the corresponding Official Comments quoted immediately below, provides in relevant part:
"(a) The only fiduciary duties a partner owes to the partnership and the other partners are the duty of loyalty and the duty of care set forth in subsections (b) and (c)." K.S.A. 56a-404(a).
"Section 404 continues the term `fiduciary' from UPA Section 21, which is entitled `Partner Accountable as a Fiduciary.' Arguably, the term `fiduciary' is inappropriate when used to describe the duties of a partner because a partner may legitimately pursue self-interest (see Section 404 [e]) and not solely the interest of the partnership and the other partners, as must a true trustee. Nevertheless, partners have long been characterized as fiduciaries. [Citation omitted.]" RUPA § 404, cmt. 1, 6 (Pt. 1) U.L.A. at 144.
"(b) A partner's duty of loyalty to the partnership and the other partners is limited to the following:
(1) to account to the partnership and hold as trustee for it any property, profit, or benefit derived by the partner in the conduct and winding up of the partnership business or derived from a use by the partner of partnership property, including the appropriation of a partnership opportunity." K.S.A. 56a-404(b)(1).
"Subsection (b)(l) is based on UPA Section 21(1) and continues the rule that partnership property usurped by a partner, including the misappropriation of a partnership opportunity, is held in trust for the partnership. The express reference to the appropriation of a partnership opportunity is new, but merely codifies case law on the point. [Citation omitted.]" RUPA § 404, cmt. 2, 6 (Pt. 1) U.L.A. at 144.
"(2) to refrain from dealing with the partnership in the conduct or winding up of the partnership business as or on behalf of a party having an interest adverse to the partnership." K.S.A. 56a-404(b)(2).
"Subsection (b)(2) provides that a partner must refrain from dealing with the partnership as or on behalf of a party having an interest adverse to the partnership. This rule is derived from Sections 389 and 391 of the Restatement (Second) of Agency. Comment c to Section 389 explains that the rule is not based upon the harm caused to the principal, but upon avoiding a conflict of opposing interests in the mind of an agent whose duty is to act for the benefit of his principal." RUPA § 404, cmt. 2, 6 (Pt. 1) U.L.A. at 144.
"(3) to refrain from competing with the partnership in the conduct of the partnership business before the dissolution of the partnership." K.S.A. 56a-404(b)(3).
. . . .
"(d) A partner shall discharge the duties to the partnership and the other partners under this act or under the partnership agreement and exercise any rights consistently with the obligation of good faith and fair dealing." K.S.A. 56a-404(d).
*760 "The obligation of good faith and fair dealing is a contract concept, imposed on the partners because of the consensual nature of a partnership. See Restatement (Second) of Contracts § 205 (1981). It is not characterized, in RUPA, as a fiduciary duty arising out of the partners' special relationship. . . . It is an ancillary obligation that applies whenever a partner discharges a duty or exercises a right under the partnership agreement or the Act." RUPA § 404, cmt. 4, 6 (Pt. 1) U.L.A. at 145.
"(e) A partner does not violate a duty or obligation under this act or under the partnership agreement merely because the partner's conduct furthers the partner's own interest." K.S.A. 56a-404(e).
"Subsection (e) is new and deals expressly with a very basic issue on which the UPA is silent. A partner as such is not a trustee and is not held to the same standards as a trustee. Subsection (e) makes clear that a partner's conduct is not deemed to be improper merely because it serves the partner's own individual interest.
"That admonition has particular application to the duty of loyalty and the obligation of good faith and fair dealing. It underscores the partner's rights as an owner and principal in the enterprise, which must always be balanced against his duties and obligations as an agent and fiduciary. For example, a partner who, with consent, owns a shopping center may, under subsection (e), legitimately vote against a proposal by the partnership to open a competing shopping center." RUPA § 404, cmt. 5, 6 (Pt. 1) U.L.A. at 146.
Before addressing plaintiffs' arguments, we first note that K.S.A. 56a-404(a) begins by identifying the "only fiduciary duties a partner owes to the partnership and the other partners are the duty of loyalty and the duty of care set forth in subsections (b) and (c)." This provision is somewhat misleading in its use of the term "fiduciary duties." Fiduciary duty is defined as a "duty to act for someone else's benefit, while subordinating one's personal interests to that of the other person," Black's Law Dictionary 625 (6th ed. 1990), while the provisions of subsection (e) expressly provides that a partner does not violate a duty or obligation under KUPA or under the partnership agreement merely because the partner's conduct furthers the partner's "own interest." K.S.A. 56a-404(e). Thus, the use of the term "fiduciary" is inappropriate because a partner may legitimately pursue self-interest instead of solely the interest of the partnership and the other partners as must a true trustee. The contentions of the plaintiffs must be considered in this light.
*761 The plaintiffs contend that the defendants violated the duty of loyalty under K.S.A. 56a-404(b)(1) and (b)(2) by appropriating the benefits of the partnership business for themselves and for others of their choosing in the merger and by dealing with the partnership as or on behalf of a party, namely MRI, LLC, having an adverse interest to the partnership, in violation of K.S.A. 56a-404(b)(2). They contend that the defendants' course of conduct overall falls significantly short of the duties of loyalty and good faith and fair dealing under K.S.A. 56a-404(d).
In support of their contention, the plaintiffs argue that Via Christi secretly planned the merger for a year and created a shell company, MRI, LLC, to effect its own self-interest in replacing the plaintiffs with other investors of its own choosing. Via Christi set up the merger in such a manner that the transaction could be performed without a unanimous vote by the plaintiffs and by denying the plaintiffs a statutory right to a court determination of the buyout price determined by Via Christi's appraiser. As the majority owner of both entities prior to the merger, Via Christi was acting as and on behalf of a party having an adverse interest to both the limited partnership and to the plaintiffs, who obtained no benefit from the merger. In contrast, Via Christi remained the sole general partner and majority limited partner of MR Imaging, L.P., retained all of its arrangements to receive fees for management services and payments for the use of Via Christi facilities, and replaced the plaintiffs with investors of its choosing. As such, the plaintiffs contend the defendants violated their duties of loyalty and good faith and fair dealing.
The defendants respond that Via Christi was well within its rights to amend the partnership agreement and accomplish the merger pursuant to K.S.A. 2005 Supp. 17-7701(d) and additional notice to the plaintiffs would not have altered this fact. They contend that Via Christi did not appropriate the financial returns and benefits of the plaintiffs' interests to itself; rather, its interest in the surviving entity was actually reduced from a 71% owner of the limited partnership to a 64.2% owner of the MRI, LLC. Defendants further note that the independent appraisal performed by Paragon placed the same value on both the plaintiffs' and the defendants' interests. *762 According to the defendants, the plaintiffs erroneously focus on whether their individual interests were in conflict with or adverse to the defendants, when the statute sets forth specific fiduciary duties to the partnership rather than to the individual partners. See K.S.A. 56a-404(b)(1), (2), and (3). They argue that no evidence was presented that MRI, LLC, competed with or held any interest adverse to MR Imaging Center, L.P., prior to the merger; that no evidence was presented that the partnership lost anything or was harmed in any way as a result of the merger; and that no evidence was presented that any opportunity of the partnership was misappropriated or that Via Christi's interests were at any time adverse to the partnership.
Our examination of the plaintiffs' contentions begins with the partnership agreement. MR Imaging Center. L.P., was formed by agreement of the plaintiffs and Via Christi on September 17, 1985, with Via Christi owning approximately 71% of the partnership, the plaintiffs with ownership of approximately 14% of the limited partnership, and the remaining 15% owned by parties not involved in the plaintiffs' action. Initially, the agreement did not permit merger on less than a unanimous vote. However, under the terms of the agreement, Via Christi possessed the power, as 71% owner, to modify the merger section as well as other sections of the partnership agreement. This is mentioned to emphasize the consensual nature of the agreement, the parties' understanding that modification through merger was possible, and that a provision against such modification could have been made part of the partnership agreement. Nevertheless, the partnership continued for a period of approximately 18 years until the merger effected by the general partner on July 31, 2003.
With these facts in mind, we conclude that the defendants' argument has merit. First, the fact that Via Christi's actions were motivated by self-interest does not per se establish a breach of a fiduciary duty under K.S.A. 56a-404(d). Second, as discussed above, the terms of the agreement granted Via Christi the majority power to modify the partnership agreement as to the merger provisions as well as other provisions. Under the terms of their agreement and Kansas law, Via Christi had the authority to orchestrate *763 the merger. As such, disclosure of plans to the plaintiffs would not have affected the transaction in this case, distinguishing this case from Sampson, where information regarding the value of the stock may have affected the sale. Finally, by analogy, we have approved freeze-out mergers under certain circumstances in the corporate context in Arnaud, Achey, and Hesston. We conclude that nothing in the process by which Via Christi secured the merger establishes a per se breach of the fiduciary duties of loyalty and good faith and fair dealing.
The plaintiffs also fail to establish how Via Christi has appropriated partnership opportunities or benefits to itself and its new partners under Supp. 56a-404(b)(1). It is true that while Via Christi's interest in the limited partnership was bought out, it still retained the majority of its interest in the limited partnership and the plaintiff limited partners were replaced with new limited partners. While this may be considered an appropriation of the profits and opportunities expected to be shared by the plaintiffs as limited partners, no evidence was presented that the limited partnership itself (which was subsequently converted into an LLC) suffered any loss of business or new opportunities by virtue of the merger. Via Christi was conducting business on behalf of and for the benefit of the limited partnership, and while the transaction served Via Christi's self-interest, that is not sufficient to establish a breach of the fiduciary duty of loyalty in the absence of evidence of the misappropriation of a partnership opportunity under K.S.A. 56a-404(b)(1).
Similarly under K.S.A. 56a-404(b)(2), no question exists that the interests of the plaintiff limited partners were adverse to both Via Christi and the new investors of MRI, LLC. However, the defendants rightly point out that the question is whether Via Christi acted as or on behalf of a party with an adverse interest to the partnership under this statutory provision. Although Via Christi, as the majority owner of both entities, represented both sides of the transaction, no evidence was presented that Via Christi itself possessed adverse interests to the limited partnership, nor was there evidence that its presence on both sides of the transaction actually harmed the limited partnership in any way. K.S.A. 56a-404(b)(2). *764 As noted in the Official Comment to § 401(b)(2), this rule "is derived from Sections 389 and 391 of the Restatement (Second) of Agency. Comment c to Section 389 explains that the rule is not based upon the harm caused to the principal, but upon avoiding a conflict of opposing interests in the mind of an agent whose duty is to act for the benefit of his principal." RUPA § 404, cmt. 2, 6 (Pt. 1) U.L.A. at 144.
Moreover, the simple fact that MRI, LLC was merging with the limited partnership does not per se establish that its interests were adverse in the absence of any evidence of adversity. MRI, LLC was only in existence for 2 weeks before it was merged into the limited partnership. The plaintiffs offered no evidence that MRI, LLC was in competition with the limited partnership or was appropriating business from the limited partnership during that time. As the plaintiffs did not establish that Via Christi was acting as or on behalf of an adverse party or that its actions harmed the partnership, the district court properly concluded that the plaintiffs had not established a breach of its fiduciary duty of loyalty under K.S.A. 56a-404(b)(2).
C. Fraud, Misrepresentation, or Misconduct under Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983)
In addition to examining the fiduciary duties set forth in K.S.A. 56a-404, the district court in this case also applied the threshold set forth in a Delaware corporate merger case. In Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983), minority shareholders in a subsidiary corporation challenged the cash-out merger by the corporate majority shareholder of the subsidiary. The majority shareholder corporation had established the buyout price without disclosing a feasibility study to the subsidiary indicating that a price in excess of what the corporation ultimately offered for the subsidiary's outstanding shares would have been a good investment for the corporation. In first discussing the burden of proof, the Supreme Court of Delaware found that a plaintiff "challenging a cash-out merger must allege specific acts of fraud, misrepresentation, or other items of misconduct to demonstrate the unfairness of the merger terms to the minority." 457 A.2d at 703. The court explained:
*765 "[E]ven though the ultimate burden of proof is on the majority shareholder to show by a preponderance of the evidence that the transaction is fair, it is first the burden of the plaintiff attacking the merger to demonstrate some basis for invoking the fairness obligation. . . . However, where corporate action has been approved by an informed vote of a majority of the minority shareholders, we conclude that the burden entirely shifts to the plaintiff to show that the transaction was unfair to the minority. [Citation omitted.] But in all this, the burden clearly remains on those relying on the vote to show that they completely disclosed all material facts relevant to the transaction." 457 A.2d at 703.
The court also noted that "[w]hen directors of a Delaware corporation are on both sides of a transaction, they are required to demonstrate their utmost good faith and the most scrupulous inherent fairness of the bargain [citation omitted]" and that "[t]he requirement of fairness is unflinching in its demand that where one stands on both sides of a transaction, he has the burden of establishing its entire fairness, sufficient to pass the test of careful scrutiny by the courts. [Citations omitted.]" 457 A.2d at 710. The court found the concept of fairness has two basic aspects: fair dealing and fair price. Fair dealing questions when the transaction was timed, how it was initiated, structured, negotiated, disclosed to the directors, and how the approvals of the directors and the stockholders were obtained. Fair price relates to the economic and financial considerations of the proposed merger. 457 A.2d at 711. Under the facts of Weinberger, the court concluded that the transaction did not satisfy the concept of fair dealing amounting to a breach of fiduciary duty and remanded for consideration of the fair value of the shares. 457 A.2d at 703, 712, 714.
While Weinberger is clearly not binding on this court, it is important to recognize that this court has recognized Delaware's "entire fairness" test concerning fair dealing and fair price under circumstances when a corporate board of directors' actions in a perceived threat of hostile takeover were not subject to the business judgment rule. See Burcham v. Unisom Bancorp. Inc., 276 Kan. 393, 421, 77 P.3d 130 (2003). Additionally, "Kansas courts have a long history . . . of looking to the decisions of the Delaware courts involving corporation law, as the Kansas Corporation Code was modeled after the Delaware Code." Arnaud v. Stockholders State Bank, 268 Kan. 163, 165, 922 P.2d 216 (1999).
*766 The plaintiffs point to the application of Weinberger in Casey v. Brennan, 344 N.J. Super. 83, 780 A.2d 553 (2001), aff'd on other grounds 173 N.J. 177, 801 A.2d 245 (2002), where minority shareholders brought breach of fiduciary duty action against a bank's board of directors, which also consisted of its majority shareholders, seeking the fair value for their shares following a merger. The court found that even those shareholders who did not qualify as statutory dissenters still had the right to claim fair compensation for their shares in the context of a cash-out merger, as an incident of the fiduciary duty of the majority to treat the minority fairly. The court utilized the fair price and fair dealing standard from Weinberger, reasoning in relevant part:
"[W]here, as here, a shareholder claim of unfairness involves a corporate transaction in which the directors stand to realize a personal benefit by continuing as shareholders after paying the minority an unfairly low price, we have no hesitancy in concluding that the fiduciary responsibilities of the directors and of the corporation toward all shareholders impose upon them the burden of proving the transaction was not `unfair and inequitable' to plaintiffs. [Citation omitted.]" 344 N.J. Super. at 108.
In this case, the defendants argue that the plaintiffs have made no specific allegations of fraud, misrepresentation, or other items of misconduct so as to invoke a judicial inquiry into the fairness of the transaction. The plaintiffs contend that they established a prima facie case of self-dealing, unfairness, and breach of fiduciary duty on the part of the defendants and the defendants should therefore be held to the burden of proving the entire fairness of the transaction despite the absence of statutory appraisal rights.
Aside from the fiduciary duties discussed above, the plaintiffs articulated at the summary judgment hearing that the fraud and misrepresentation took the form of intentionally concealing the business plan Via Christi was developing, selecting a process to exchange the plaintiffs' interests with those of other limited partners without providing statutory appraisal rights, and manipulating the valuation of the allegedly independent expert as to the valuation of the company.
As discussed above, Via Christi's actions in planning the merger were in accord with the limited partnership agreement and the *767 applicable Mixed Entity Merger statutes, which do not provide for statutory appraisal rights. These actions were not in and of themselves fraudulent, nor did the actions constitute a breach of a fiduciary duty. Rather, the key issue to be determined in this analysis is whether the plaintiffs have established any fraud, misrepresentation, or misconduct in Via Christi's involvement in the valuation of the limited partnership during the appraisal by its appraiser of choice, Paragon.
In their brief on appeal, the plaintiffs argue that the appraisal was prepared by an appraiser selected by Via Christi at the direction of Via Christi and was not given to the plaintiffs for comment or criticism prior to the merger. However, according to the defendants, Paragon was chosen because of its expertise in the valuation of the transaction contemplated. The plaintiffs do not point to any specific evidence below to support a conclusion that Via Christi by its selection of Paragon for the appraisal engaged in any misconduct or manipulated the value of the limited partnership through manipulation of Paragon. The record supports the opposite conclusion.
Although plaintiffs' appraisal valued the limited partnership nearly $5,000,000 more than the Paragon appraisal, Weinberger counsels that inquiry into the fairness of the price does not happen unless plaintiffs can establish fraud, misconduct, or misrepresentation. At the summary judgment hearing, the plaintiffs argued that Via Christi's involvement with the appraisal process in suggesting why different aspects of Paragon's assumptions were incorrect and needed to be changed demonstrated an interference in the appraisal process beyond providing data in an effort to achieve a "friendly price" for the incoming limited partners. However, when asked if the suggestions offered by Via Christi representatives were adopted by the appraiser without regard to the truth, plaintiffs' counsel responded:
"I'm not able to tell you whether the net impact was to increase or decrease the overall valuation. There were modifications in the figures in a way that I'm unable to express to the Court whether the impact was to increase, decrease or remain neutral with regard to the price being paid to the limited partnership interest holders. The aspect that we are critical of is the is both the process in *768 which the fiduciary clearly participated and comparing that to the other objective evidence regarding what a valuation would be."
The defendants point out that discovery on the communications between Via Christi and the appraiser showed no evidence that Via Christi acted in anything other than an above-board manner, even going to the expense of retaining attorneys to convince Paragon not to reduce the value of the limited partnerships for minority and marketability discounts. Indeed, a review of the conclusions of Paragon's Confidential Valuation Letter Report provides:
"Based on the results for the methods that appear most applicable to the Partnership's current status and potential, primarily the Discounted Cash Flow method, Paragon believes that the Fair Market Value for a 100% equity interest in Partnership would be $6,700,000 assuming a 32.6% lack of marketability discount.
"However based upon VCHP's [Via Christi's] direction, and representations of its legal counsel's opinion, our analysis indicates, that a Fair Value for a 100% equity interest in the Partnership would be $9,900,000."
Thus, while the evidence established Via Christi may have influenced the appraisal process in some manner, it is clear that this influence resulting in an increase of $3.2 million in the valuation of the limited partnership, which was in the best interest of the limited partners as well as the general partner. It is also important to recognize that the limited partner plaintiffs and the general partner, in the absence of discovery from Paragon, stipulated that Paragon would testify that its valuation was independent. Based upon this stipulation, the district court concluded that Paragon was in fact independent in its valuation of the limited partnership. The limited partner plaintiffs received the same value for their interests in the limited partnership as did the general partner, Via Christi. The limited partner plaintiffs have not established that Via Christi engaged in fraud, misrepresentation, or misconduct during the appraisal process sufficient to warrant a review of the fairness of the transaction under Weinberger.
D. Conclusion
The plaintiffs have not established a prima facie case of a breach of the fiduciary duties of loyalty and good faith and fair dealing under K.S.A. 56a-404(b)(1), (b)(2), and (d) or specific acts of fraud, *769 misrepresentation, or misconduct sufficient to shift the burden of proof to the defendants to establish the fairness of the transaction. In the absence of any such evidence, there remained no material dispute regarding the plaintiffs' claims of breach of fiduciary duty, good faith, and fair dealing or any material dispute regarding claims of specific acts of fraud, misrepresentation, or other items of misconduct. Finally, based upon the plaintiffs' stipulation that Paragon would testify that it was independent in its evaluation of the limited partnership, together with the actions of defendants' counsel regarding the increased valuation of the limited partnership, the case was ripe for summary judgment. We affirm the district court's determination as a matter of law that the defendants be granted summary judgment on the plaintiffs' claims.
Affirmed.
LOCKETT, J., Retired, assigned.[1]
NOTES
[1] REPORTER'S NOTE: Justice Tyler C. Lockett, Retired, was assigned to hear case No. 92,867 pursuant to the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court resulting from Justice Gernon's death.
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NO. 07-06-0225-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
NOVEMBER 30, 2007
______________________________
MICHAEL A. WILLIAMS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2006-412139; HONORABLE JIM BOB DARNELL, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
Appellant, Michael A. Williams, appeals his conviction for burglary of a habitation,
enhanced by a previous felony conviction, and sentence of 45 years confinement in the
Institutional Division, Texas Department of Criminal Justice. Appellant contends that the
trial court erred in denying his motion to suppress, which alleged an impermissibly
suggestive pre-trial identification procedure tainted the in-court identification of appellant
in violation of the Due Process Clause of the 14th Amendment of the United States
Constitution. We affirm.
Background
Around 11:00 a.m. on July 7, 2005, Jean Jobe received a call from her alarm
company alerting her that her home alarm was going off at the backdoor. Jobe drove
immediately to her home and, upon arriving, witnessed a man coming out of the backdoor
of her house. Because he was not aware of her presence, she was able to observe the
burglar’s profile for about a minute and a half. She then yelled at the burglar, catching his
attention, and observed him face-to-face for another 45 seconds. The burglar fled the
scene and Jobe pursued him for half a block. While pursuing the burglar, she called 9-1-1
and described the man and identified the direction he was running.
No more than thirty minutes after Officer Herrera was dispatched to investigate the
burglary call, he encountered appellant, who matched the description of the burglar, in an
alley about a block and a half or two blocks from Jobe’s home. Herrera told appellant that
he was going to place him in the patrol car and transport him to a different location for
identification, at which time, appellant stated, “I’ll tell you the truth. I tried to break into the
house.”
Herrera took appellant back to Jobe’s home for a “showup.” Upon arriving at Jobe’s
house, Herrera told Jobe that “I need you to identify the man and then step away from the
car.” Jobe approached the patrol car, observed appellant, and told the officers, “That’s
him. He’s the one.” Appellant was then placed under arrest and transported to jail by
another officer on the scene.
2
At trial, appellant filed a motion to suppress both the showup identification and the
statement he made to Herrera. Following a jury trial, appellant was convicted of burglary
of a habitation, enhanced by a 1985 felony conviction of burglary of a habitation, and
sentenced to 45 years confinement in the Institutional Division, Texas Department of
Criminal Justice. In his appeal, appellant does not challenge the trial court’s denial of his
motion to suppress the statement he made to Herrera. Therefore, the statement is before
the appellate court for all purposes. In his sole point of error, appellant challenges only the
trial court’s denial of his motion to suppress his pretrial identification by Jobe, claiming that
the impermissibly suggestive pre-trial identification procedure utilized tainted the in-court
identification of appellant in violation of the Due Process Clause of the 14th Amendment
of the United States Constitution.
Standard of Review
Whether the trial court erred in admitting into evidence a witness’s identification of
the accused involves a mixed question of law and fact. Loserth v. State, 963 S.W.2d 770,
772 (Tex.Crim.App. 1998). Great deference is given to the trial court’s resolution of the
historical facts pertinent to the case; however, whether the historical facts render the
identification unreliable is reviewed de novo. Id. at 772-74. Thus, the appellate court need
not grant deference to the trial court’s determination that the “historical facts compelled or
supported the decision to admit or exclude the evidence.” Benitez v. State, 5 S.W.3d 915,
921 (Tex.App.–Amarillo 1999, pet. ref’d).
3
Law and Analysis
The court makes two inquiries in determining whether a pre-trial identification should
be excluded: (1) whether the police used an impermissibly suggestive pre-trial identification
procedure in obtaining the out-of-court identification, and (2) if so, whether, under all the
circumstances, there was a very substantial likelihood of irreparable misidentification.
Manson v. Brathwaite, 432 U.S. 98, 107, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
The first inquiry in determining whether appellant’s due process rights were violated
is whether the police used an impermissibly suggestive procedure in obtaining the out-of-
court identification. Id. Upon apprehending appellant, Herrera brought him back to the
scene, seated in the back of the patrol car in handcuffs, and instructed Jobe that all she
needed to do was identify him and get away from the car. Jobe testified that she
approached the car, looked in, examined appellant, and then identified him with “no doubt,”
based on his facial features and with “no influence in identifying him from anyone involved.”
In the present case, appellant asserts that, “this case should turn on the
impermissibly suggestive pre-trial identification alone.” However, to show that the
statement made by Herrera was impermissibly suggestive, appellant relies solely on the
holding in Delk v. State, 855 S.W.2d 700, 706 (Tex.Crim.App. 1993). Appellant asserts
that, in Delk, the court held that a single picture shown to a witness was an impermissibly
suggestive method of identification. Id. Therefore, the appellant reasons that the method
used by Herrera, whereby only a single individual was shown to Jobe, was similarly
impermissibly suggestive. However, appellant misstates the Delk court’s holding. The
4
Delk court did not conclusively determine that identification by a single picture was
impermissibly suggestive; rather, it held only that the single picture coupled with the
statements of the police made it “possible” that this procedure impermissibly suggested
that the Sheriff believed the person in the photo killed the witness’s husband. Id. The Delk
court went on to say that, even if this method was impermissibly suggestive, this does not
end the inquiry. Id. at 706. The court must also address whether there was a substantial
likelihood of irreparable misidentification. Id.
Under Delk, Herrera’s method, whereby only a single individual was shown to Jobe,
coupled with Herrera’s statement, made it “possible” that this procedure impermissibly
suggested that Herrera believed the person in the backseat of the squad car was the
burglar. However, as appellant cites no further authority to support his assertion that “this
case should turn on the impermissibly suggestive pre-trial identification alone,” under Delk,
even if it is “possible” that Herrera’s method was impermissibly suggestive, this does not
end the inquiry. The court must also address whether there was a substantial likelihood
of irreparable misidentification.
Because under Delk it is only “possible” that the procedure was impermissibly
suggestive, the question thus becomes whether, under the totality of the circumstances,
the identification was reliable despite the suggestive nature of the confrontation’s
procedure. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d. 401 (1972). The
following five factors should be “weighed against the corrupting effect of any suggestive
identification procedure in assessing reliability under the totality of the circumstances”: (1)
5
the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s
degree of attention, (3) the accuracy of the witness’s description of the criminal, (4) the
level of certainty demonstrated by the witness at the confrontation, and (5) the length of
time between the crime and confrontation. Id. at 199-200.
Jobe had the opportunity to view the burglar’s profile during the minute and a half
that she witnessed him coming out of the backdoor of her house. After catching his
attention, she viewed him face-to-face for an additional 45 seconds, at which time, Jobe
testified that she was so close that she “could have tackled him.” Furthermore, Jobe
pursued the burglar for about half a block before terminating her pursuit, giving her
additional time to observe his clothing.
Appellant asserts that nothing in the record indicates that Jobe had a heightened
degree of attention to the details of the burglar. However, after receiving the call from her
alarm company, Jobe had reason to believe that someone had entered her house through
the backdoor. Upon arriving at the backdoor of her home, she observed the burglar for the
minute and a half that he was unaware of Jobe’s presence, as well as for the 45 seconds
after Jobe confronted him. Furthermore, Jobe described the burglar and the direction in
which he was fleeing to the 9-1-1 operator as she was in pursuit of him. Thus, the record
indicates that, from the time Jobe received the phone call from the alarm company, she
had a heightened degree of attention that continued throughout her observation, pursuit,
and description of the burglar.
6
Jobe described the burglar to the 9-1-1 operator as a “skinny black male, about 5’9”,
with short black hair wearing a gray shirt and gray shorts with a thin white band running
across the bottom of his shorts. Appellant asserts he was “dressed somewhat differently
at the time he was encountered by law enforcement” than the description of the burglar
that Jobe gave because he had a small silver band going around the bottom of his shorts.
However, Jobe’s description of the burglar’s physical features, the direction in which he
was fleeing, and his clothing, other than the color of the band on the bottom of his shorts,
was sufficiently accurate to ensure no irreparable mistaken identity.
When appellant was brought to Jobe’s home, Jobe testified that she looked in the
police car, observed the man, looked at his pants, knew he was the burglar and, with “no
doubt,” immediately indicated to police, “that’s him. He’s the one.” Appellant contends that
Herrera’s statement that he needed Jobe to identify the man and then step away from the
car was enough to suggest to Jobe that appellant was the burglar. Jobe testified that she
recognized the burglar based on her observations of him and that she “had no influence
[in] identifying him from anyone involved.” We construe Herrera’s request that Jobe
identify the man and then step away from the car as instructions to Jobe and not as a
suggestion regarding whether appellant was the burglar so as to affect Jobe’s level of
certainty. Herrera never made any statements suggestive that he believed appellant to be
the burglar; only that Jobe was to look into the car and determine whether this person, who
matched the description she gave in the 9-1-1 call, was the person she saw coming out of
her backdoor.
7
Jobe and appellant are in agreement that the length of time between Jobe’s
encounter with the burglar and appellant’s apprehension was no more than 30 minutes.
The record supports an even shorter length of time between the 11:36 a.m. 9-1-1 call, the
11:39 a.m. dispatch of Herrera, his two to three minute encounter with appellant a block
and a half to two blocks away from Jobe’s house, and his immediate return to Jobe’s
house to conduct the showup. Regardless, the lapse of time between Jobe’s viewing of
the burglar and her identification of appellant was insufficient for Jobe to forget the
burglar’s facial features or physical characteristics and to result in irreparable mistaken
identification.
Having considered the factors for the determination of reliability of a suggestive
identification procedure under the totality of the circumstances, we find that the showup
procedure used by Herrera did not result in irreparable mistaken identification.
Furthermore, appellant does not appeal the denial of the motion to suppress his statement
to Herrera that “I’ll tell you the truth. I tried to break into the house." Therefore, this issue
is before the court for all purposes, including the identification of appellant and evaluation
of harm. Even assuming arguendo that the trial court judge erred in admitting the showup,
appellant does not assert that the trial court erred in admitting his inculpatory statement,
and, thus, we find no harm.
8
Conclusion
For the foregoing reasons, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Publish.
9
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Venture v Preferred Mut. Ins. Co. (2017 NY Slip Op 06594)
Venture v Preferred Mut. Ins. Co.
2017 NY Slip Op 06594
Decided on September 26, 2017
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on September 26, 2017
Acosta, P.J., Richter, Webber, Kahn, JJ.
155587/14 4342N 4341
[*1] Daniel Venture, et al., Plaintiffs-Appellants,
vPreferred Mutual Insurance Company, Defendant-Respondent.
Law Offices of Eric Dinnocenzo, New York (Eric Dinnocenzo of counsel), for appellants.
Dodge & Monroy, P.C., Lake Success (Mark Scopinich of counsel), for respondent.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered December 29, 2016, which denied plaintiffs' motion to renew their motion for production of certain documents, and to depose and disqualify defendant's counsel, unanimously reversed, on the law and facts, without costs, the motion to renew granted, and the matter remanded to Supreme Court for a hearing in which counsel for plaintiffs and defendant will be permitted to probe the issue of whether Peter Dodge, Esq. served as an investigator, solely as an attorney, or in some type of hybrid role, including examining Dodge under oath, and for the court to make a determination as to Dodge's role, supported by factual findings, and reconsider plaintiffs' motion based on its findings. Appeal from order, same court and Justice, entered January 21, 2016, unanimously dismissed, without costs, as academic in view of the foregoing.
Defendant Preferred Mutual Insurance Company issued a homeowner insurance policy to plaintiffs, providing $325,000 in coverage for their property located at 38 Morton Hill Road, Roscoe, New York, for the period from January 8, 2013 through January 8, 2014. The policy also provided $227,500 in personal property coverage.
On or about November 17, 2013, there was a fire, which completely destroyed the house and all of plaintiffs' property. Plaintiffs allege that they provided defendant timely notice of the fire and of their claim under the policy, including sworn proof of loss. Plaintiff Daniel Venture provided defendant with a good faith valuation of the property loss, based on his best estimate as a lay person.
Plaintiffs claim that during the investigation into the fire, defendant and its attorney attempted to develop incriminating evidence against them and their sons, in an effort to avoid defendant's obligations under the policy and to subject plaintiffs to criminal prosecution.
In a letter dated February 14, 2014, from defendant's attorney, Peter Dodge of the law firm Dodge & Monroy, to defendant's employees, Michael McGuire and Wendy Bodie, Dodge conveyed his evaluation and analysis report of the testimony of plaintiffs' sons, Ivan Venture and Paris Venture. Dodge discussed testimony that a white Jeep, possibly belonging to the Ventures, was seen backed up to the property on November 17, 2013 (the date of the fire). He concluded that "[t]his testimony will serve to establish not only material misrepresentations on behalf of Daniel Venture, Ivan Venture and Paris Venture, but also that someone from the family was located on the premises on November 17, 2013." Dodge referenced the legal standard for arson and stated as follows:
"We note that Mr. Venture was significantly in arrears for over four years on the mortgage to the property in question. Daniel Venture also over estimated [sic] the value of the home at $394,000.00. He estimated that he owes $160,000.00. The statement of loss from Focus Investigations indicates that the actual cash value of the home was $184,275.00. The appraisal amounted between $109,000 and $137,000.00. We believe that it is highly suspicious that Mr. Venture did not go back to check on the property until one week later. It is also highly [*2]suspicious that he did not contact any investigative agencies about the fire until two weeks later. We note that the Ventures all have internal alibis as to where everyone was on November 17, 2013. However, all of the alibis are within the family except for a family friend named Martin Rabovich. We note that the investigative agency from Delaware County has indicated in their report that the fire is suspicious and that an intentional setting of the fire has not been ruled out. Our expert, Joseph Myers, opines that the fire was incendiary, through to the process of deduction."
By letter dated February 28, 2014, defendant denied coverage under the policy, citing provisions of the policy which render it void in the case of misrepresentation, concealment, or fraud, and which exclude coverage for "intentional acts." Defendant concluded, based on its investigation, that "the fire was incendiary in origin and intentionally set by you [plaintiffs] or someone on your behalf at your direction. Further, during the course of the investigation, you engaged in fraudulent conduct, swore falsely with respect to the claim and willfully concealed and misrepresented material facts." The letter sets forth in detail the testimony and evidence supporting defendant's determination.
In their complaint, plaintiffs assert causes of action for breach of contract and "bad faith insurance denial." Plaintiffs served discovery demands seeking the entire claims file relating to the policy, as well as all reports, memos, communications, and other documents generated by any person or entity performing the investigation on defendant's behalf, and any such documents showing that the fire was incendiary and that plaintiffs or their children had any involvement with causing the fire.
In response to the request for the claims file, defendant redacted certain documents due to "privilege," and withheld on the basis of attorney-client privilege all correspondence between defendant and the Dodge law firm. The internal coverage opinion letter authored by Dodge had not been produced, and defendant did not provide them with a privilege log.
Accordingly, by notice of motion dated April 10, 2015, plaintiffs moved: (1) for defendant to produce an unredacted version of the coverage memorandum, and other documents withheld on the basis of privilege, for in camera review; (2) for leave to issue a subpoena for a deposition, and production of documents for review, in camera, of attorney Peter Dodge and Dodge & Monroy; and (3) to disqualify Dodge & Monroy from representing defendant.
The court directed defendant to produce the withheld documents, as well as a privilege log for review in camera. After conducting an in camera review of the documents in question, the court denied plaintiffs' motion. In a one paragraph order without any factual findings, the court determined that the withheld or redacted documents were subject to attorney client privilege, constituted attorney work product, were prepared in anticipation of litigation, or related only to the setting of reserves. The court further held that plaintiffs had not met their burden of showing any need for a deposition or production of documents from, or any basis for disqualification of, defendant's counsel.
Plaintiffs assert that their June 21, 2016 deposition of Michael McGuire, who worked within defendant's Special Investigation Unit, revealed that attorney Peter Dodge played a more significant role in the claims investigation and denial than previously understood. Plaintiffs also discovered through McGuire's deposition that it was Dodge who first suggested that the claim be denied, and that he drafted the denial letter.
By notice of motion dated September 21, 2016, plaintiffs moved pursuant to CPLR 2221(e) to renew their prior motion, specifically seeking production of all documents concerning the insurance claim and investigation, including all draft disclaimer letters, an unredacted coverage opinion, all examination under oath (EUO) summaries, all documents previously produced in camera, and communications with plaintiffs' neighbor, Dan Baldo, and other witnesses. Plaintiffs also renewed their request that Dodge & Monroy be disqualified, and for leave to issue a subpoena for Peter Dodge's deposition and for a copy of his case file. Plaintiffs also sought a stay of discovery pending a decision on their motion. The court denied plaintiffs' [*3]motion, holding that they had failed to set forth any new facts or evidence.[FN1]
"[T]he CPLR establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery (CPLR 3101[b]); attorney's work product, also absolutely immune (CPLR 3101[c]); and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means CPLR 3101 [d][2]" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376-377 [1991]). "[I]n order for attorney-client communications to be privileged, the document must be primarily or predominantly a communication of a legal character" (Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 191 [1st Dept 2005]). "[T]he burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 377; Brooklyn Union Gas Co., 23 AD3d at 191).
"Reports of insurance investigators or adjusters, prepared during the processing of a claim, are discoverable as made in the regular course of the insurance company's business" (Brooklyn Union Gas, 23 AD3d at 190). "Furthermore, attorney work product applies only to documents prepared by counsel acting as such, and to materials uniquely the product of a lawyer's learning and professional skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal theory or strategy" (id. at 190-191). "Documents prepared in the ordinary course of an insurance company's investigation to determine whether to accept or reject coverage and to evaluate the extent of a claimant's loss are not privileged and are, therefore, discoverable. In addition, such documents do not become privileged merely because an investigation was conducted by an attorney" (id. at 191 [internal quotation marks omitted]; National Union Fire Ins. Co. of Pittsburgh, Pennsylvania v TransCanada Energy USA, Inc., 119 AD3d 492, 493 [1st Dept 2014], lv dismissed 24 NY3d 990 [2014]).
On appeal, plaintiffs contend that Dodge was not acting in a legal capacity and, rather, performed the function of a claims investigator. Defendant claims that the investigation was solely performed by McGuire, and that Dodge's role consisted of conducting EUOs and providing legal advice based thereon. It also states that all of the information requested by plaintiffs in their motion to renew was already provided to the court as part of the in camera review and, in that sense, was not new.
Based on the record before us, we cannot determine Dodge's true role in this matter. Accordingly, this matter is remanded in accordance with the decretal paragraph.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 26, 2017
CLERK
Footnotes
Footnote 1:By order of this Court, discovery was stayed. This Court denied plaintiffs' application for production of the in camera documents, without prejudice to plaintiffs seeking defendant's submission of documents, under seal, as a supplemental record on appeal (2016 NY Slip Op 95895 [u] [1st Dept 2016]). By separate order, the stay was continued, and defendant was directed to produce the in camera documents, under seal, in a supplemental record (2017 NY Slip Op 62997 [u][1st Dept 2017]).
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-20-2008
Alim v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2382
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Recommended Citation
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 07-2382 & 07-3393
(Consolidated)
___________
IRA DESIREE ALIM;
JIMMY TAIRAS KHO,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A A95-144-583 & A70-868-690 )
Immigration Judge: Honorable Donald Vincent Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 14, 2008
Before: Chief Judge SCIRICA, FUENTES and GARTH, Circuit Judges
(Opinion filed: May 20, 2008)
___________
OPINION
___________
PER CURIAM
Petitioners, Ira Alim and Jimmy Kho, petition for review of a final order of
removal issued by the Board of Immigration Appeals (“BIA”) and petition for review of
the BIA’s denial of their motion for reconsideration of their final order of removal. For
the reasons that follow, we will deny both petitions.
Petitioners, wife and husband,1 are natives and citizens of Indonesia and are
Christians. Alim entered the United States on January 11, 1999, as a B-2 non-immigrant
visitor and was authorized to remain temporarily within the United States until February
10, 2000. On October 29, 2001, Alim was issued a Notice to Appear, which alleged that
she was in the country without authorization. Kho entered the United States on
November 5, 1998, as a B-2 non-immigrant visitor and was authorized to remain
temporarily within the United States until November 4, 1999. On November 19, 2001,
Kho was issued a Notice to Appear, which alleged that he was in the country without
authorization. In response, Petitioners applied for asylum, withholding of removal, relief
under the Convention Against Torture (“CAT”), and voluntary departure.
In denying their claims on September 19, 2005, the Immigration Judge (“IJ”)
concluded that Petitioners’ asylum applications were untimely. The IJ further found that
Petitioners had not satisfied the requirements for withholding of removal pursuant to
§ 241(b)(3)(A) or for relief under the CAT. The IJ granted their applications for
voluntary departure. On April 5, 2007, the Board of Immigration Appeals (“BIA”)
affirmed the IJ’s decision. Thereafter, Petitioners filed a timely petition for review.
(C.A. No. 07-2382.) On May 4, 2007, Petitioners filed a motion for reconsideration with
the BIA, which the BIA denied on July 10, 2007. On August 9, 2007, Petitioners filed a
1
Petitioners were married in the United States.
2
petition for review of the BIA’s denial of their motion for reconsideration, (C.A. No. 07-
3393), and moved to consolidate both petitions. The petitions for review have been
consolidated and are ripe for disposition.
Because the BIA’s decision, which dismissed Petitioners’ appeal, adopted a
portion of the IJ’s decision, we will review the determinations of both the BIA and the IJ.
See Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir. 2007). We will sustain their
determinations if they are supported by substantial evidence in the record. Id. Under the
substantial evidence standard, we will uphold the determinations of the BIA and the IJ
“unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v.
Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (citations omitted). We review the BIA’s
denial of a motion for reconsideration for an abuse of discretion. Nocon v. I.N.S., 789
F.2d 1028, 1033 (3d Cir. 1986). Under the abuse of discretion standard, the BIA’s
decision may be reversed only if it is “arbitrary, irrational, or contrary to law.” Sevoian v.
Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).
In most cases, we have jurisdiction to review a final order of removal involving the
denial of asylum. 8 U.S.C. § 1252(a)(1). However, 8 U.S.C. § 1158(a)(3) provides that
no court shall have jurisdiction to review any determination regarding the timeliness of an
asylum application and the applicability of the exceptions. See Tarrawally v. Ashcroft,
338 F.3d 180, 185 (3d Cir. 2003). Petitioners argue that we have jurisdiction to review
the denial of their asylum applications because the IJ and the BIA failed to apply the
3
proper legal standard in determining the timeliness of their applications.2 More
specifically, Petitioners argue that the IJ and BIA failed to properly review the evidence
in the record by failing to consider Petitioner Alim’s psychological evaluation. We
disagree.
The IJ’s decision states, “[t]he Court has considered all of the reasoning that the
respondents have provided the Court as to why they filed an application in a tardy
fashion, and the Court, therefore, finds that none of these reasons amount to. . .
extraordinary circumstances as that term is defined.” (Petr.’s App. 11) (emphasis added).
On appeal, the BIA adopted and affirmed the IJ’s decision and reasoning for denying
Petitioners’ asylum applications and specifically stated that the Petitioners had failed to
“demonstrate the existence of extraordinary circumstances preventing them from filing
for asylum within the statutory and regulatory time limits.” (Id. at 12.) The BIA’s
decision denying reconsideration further reiterates that the BIA considered the evidence
in the record, stating “the respondent wife’s emotional impairment was considered but
was not deemed to have been of such nature as to excuse timely filing of the asylum
application.” (Id. at 3.)
2
In May 2008, the BIA issued a precedential opinion, albeit in another context, which
would appear to establish that “the Board may review questions of law, discretion, and
judgment and all other issues in appeals from decisions of immigration judges de novo”
rather than under a restrictive standard (“clearly erroneous”) applied to factual matters.
Matter of V-K, 24 I. & N. Dec. 500, 500, 2008 WL 2008855 (BIA 2008) (internal
quotations omitted).
4
Based on the foregoing, we conclude that the IJ and the BIA properly considered
the evidence in the record. Accordingly, because there is no legal error, we lack
jurisdiction to review the IJ’s and the BIA’s determination regarding the timeliness of
Petitioners’ asylum application and the applicability of the exceptions. See Tarrawally,
338 F.3d at 185.
Petitioners also argue that the IJ and the BIA erred in concluding that they failed to
establish past persecution on account of race, religion and membership in a particular
social group. See 8 U.S.C. § 1231(b)(3)(A). To obtain withholding of removal,
Petitioners must demonstrate a “clear probability” that their “[lives] or freedom would be
threatened” on account of one of the aforementioned grounds. Wang v. Gonzales, 405
F.3d 134, 139 (3d Cir. 2005); 8 U.S.C. § 1231(b)(3)(A). If, however, Petitioners establish
that they suffered past persecution it is presumed that their lives or freedom would be
threatened for purposes of withholding of removal. 8 C.F.R. § 1208.16(b)(1). The
Government may then rebut this presumption by proving certain criteria by a
preponderance of the evidence. See 8 C.F.R. § 1208.16(b)(A)-(B).
Petitioner Alim
At her hearing before the IJ, Alim testified that she was afraid to return to
Indonesia because, while residing there, she was the victim of an attempted rape. Two
Muslim men attacked her and her friend after their motorcycle broke down. An elderly
man stopped and prevented the men from raping her and assisted Alim and her friend in
5
returning home. Alim did not report the incident to the police. After that incident, she
worked from her home because she was afraid to go outside. Alim also testified that in
1998, her friend’s father was murdered. Several individuals broke into a store owned by
her friend’s parents, and then struck her friend’s father until he was unconscious. The
assailants then poured gasoline over his unconscious body and lit him on fire. The store
was located approximately one hour away from Alim’s residence. Alim also testified that
her brother still resides and works in Indonesia.
The IJ concluded, and the BIA affirmed, that the attempted rape incident, while
certainly horrendous, was an isolated criminal event, which was not motivated by Alim’s
ethnicity or religion. Alim argues that, because the IJ and the BIA failed to consider
whether she established persecution based on a particular social group, specifically her
gender, we should remand her case for further consideration. We disagree.
Alim’s application for withholding of removal asserts that she was persecuted on
account of being a “Chinese woman,” living in Indonesia, not simply as a female living in
Indonesia. (Petr.’s App. 90.) Alim’s membership in a social group is, therefore,
dependent on her ethnicity as well as her gender. Accordingly, the IJ’s conclusion that
the attempted rape of Alim was not motivated by her ethnicity addressed not only her
claim involving persecution on account of ethnicity, but also her claim involving
persecution on account of her membership in a particular social group, i.e., as a Chinese
woman.
6
We further conclude that the IJ’s and the BIA’s decisions regarding Alim’s
withholding of removal application are supported by substantial evidence in the record.
Alim’s account of isolated criminal acts do not rise to the level of persecution that would
compel a contrary conclusion to the determinations of the IJ and the BIA. See Lie v.
Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005). Furthermore, none of the incidents recounted
by Alim compels the conclusion that she has established a well-founded fear of future
persecution.
Petitioner Kho
Kho testified that he left Indonesia because conditions were chaotic. While
residing in Indonesia, his car was stopped by rioters, who then attacked him. The rioters
broke out the windows of his car, pulled him out of the vehicle, and kicked him in the
face. The rioters took his wallet and wristwatch, and broke his arm by hitting him with a
stick. A security guard eventually got Kho back into his vehicle and drove him away
from the scene. Kho testified that he went to the hospital as a result of the attack and
stayed overnight for treatment. He did not report the incident to the police. Kho also
testified that a threatening flyer had been put on his front porch, which stated, “kill the
Chinese”, and “we will impregnate the women.” Several of the flyers had been
distributed throughout Kho’s neighborhood. Additionally, when Kho last spoke to his
mother, who still resides in Indonesia, she told him that, while holding a worship meeting
at her home, three or four Muslim members of the community stopped by to question her
7
regarding the gathering in her home. Kho’s mother told the group that she was simply
visiting with friends. The group left, but warned Kho’s mother that she could not hold
prayer meetings without a permit.
Upon review of the record, we conclude that the determinations by the BIA and the
IJ are supported by substantial evidence. Persecution is defined as “threats to life,
confinement, torture, and economic restrictions so severe that they constitute a threat to
life or freedom.” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (quoting Fatin v. INS,
12 F.3d 1233, 1240 (3d Cir. 1993)). None of the incidents Kho testified regarding
compels a contrary conclusion to the findings of the BIA and the IJ.
Given the deferential standard of review that governs, we will not disturb the
decisions of the BIA and the IJ.3 For the foregoing reasons, we will deny Petitioners’
petitions for review. In light of our disposition of Petitioners’ petition for review,
Petitioners’ motion for a stay of removal is denied as moot. See Catney v. I.N.S., 178
F.3d 190, 196 n.9 (3d Cir. 1999).
3
Petitioners do not allege any incidents or likelihood of torture, and thus cannot meet
the criteria for relief under the CAT. 8 C.F.R. § 208.16(c)(2).
8
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 98-3486WM
_____________
United States of America, *
* On Appeal from the United
Appellee, * States District Court
* for the Western District
v. * of Missouri.
*
Lord Kang, * [To Be Published]
*
Appellant. *
___________
Submitted: December 3, 1999
Filed: December 22, 1999
___________
Before RICHARD S. ARNOLD, LAY, and LOKEN, Circuit Judges.
___________
PER CURIAM.
Lord Kang appeals the sentence imposed by the District Court1 upon remand for
resentencing. We affirm.
In May 1997, defendant pleaded guilty, pursuant to a plea agreement, to one
count of possessing cocaine base or crack with intent to distribute and one count of
distributing cocaine base or crack, both in violation of 21 U.S.C. § 841(a)(1). In the
1
The Honorable Russell G. Clark, United States District Judge for the Western
District of Missouri.
plea agreement, the government submitted that defendant was responsible for more than
50 grams of crack; but at sentencing, defendant admitted to possessing only 6.84 grams
of crack. The District Court accepted the government’s submission, and sentenced
defendant to concurrent prison terms of seven years and three months. Defendant
appealed, arguing that the District Court erred in calculating the quantity of drugs
attributed to him, and that he should have been given a two-level safety-valve
reduction. We reversed and remanded for resentencing. United States v. Kang, 143
F.3d 379 (8th Cir. 1998).
At resentencing, a government informant testified that over a period of several
months, she had daily purchased about two grams of crack from defendant. Based on
this testimony, the District Court resentenced defendant to concurrent prison terms of
seven years and three months. The Court also denied the safety-valve reduction,
finding defendant had not been truthful about his drug activity.
Defendant now argues that (1) the District Court violated the law-of-the-case
doctrine by accepting the informant’s testimony at resentencing, because it had ruled
at sentencing that her testimony would not be considered; (2) the government was
prohibited at resentencing from introducing the informant’s testimony to prove drug
quantity, because the government had waived her testimony at sentencing and instead
had relied on its interpretation of the plea agreement’s stipulations to prove drug
quantity; and (3) the District Court erred in not granting safety-valve relief.
Defendant’s first argument fails. Our remand order instructed the District Court
to receive evidence to prove the drug quantity attributable to defendant, see Kang, 143
F.3d at 383, and the District Court’s evidentiary rulings at sentencing were not binding
at the de novo resentencing hearing, see United States v. Cornelius, 968 F.2d 703, 705
(8th Cir. 1992) (at resentencing, district court can hear any relevant evidence on
remanded issue that it could have heard at first hearing).
-2-
Defendant’s second argument also fails: the government properly introduced and
the resentencing court properly relied on the informant’s testimony. Furthermore, the
drug-quantity finding was based on the District Court’s assessment that the informant’s
testimony was credible to the extent it showed defendant was responsible for more than
50 grams of crack. See United States v. Behler, 187 F.3d 772, 777 (8th Cir. 1999)
(district court’s assessment of credibility is “virtually unreviewable”); United States v.
Ayers, 138 F.3d 360, 363 (8th Cir.) (reviewing drug-quantity findings for clear error,
and finding district court properly and reasonably estimated total drug quantities based
on witnesses’ testimony), cert. denied, 119 S. Ct. 219 (1998).
Finally, we conclude the District Court’s safety-valve findings are not clearly
erroneous, and defendant did not satisfy his burden of showing he had truthfully
provided to the government all information regarding his drug crimes before
resentencing. See United States v. Morones, 181 F.3d 888, 890 (8th Cir. 1999)
(defendant bears burden of proving he is entitled to safety-valve relief by
preponderance of evidence); United States v. Tournier, 171 F.3d 645, 647 (8th Cir.
1999) (standard of review); United States v. Santana, 150 F.3d 860, 864 (8th Cir.
1998) (finding defendant was not eligible for safety-valve reduction because he did not
provide any information regarding relevant crime prior to sentencing).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-
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954 F.2d 1546
72 Ed. Law Rep. 748
Benjamin HARDY, Plaintiff-Appellant,Sarah Summerville, Plaintiff,v.BIRMINGHAM BOARD OF EDUCATION, Dr. T.L. Alexander, Mrs.Martha Gaskins, Dr. Robert Corley, Mrs. OrnieMcAlpin, Mr. Hank Nelson, III, Dr.Cleveland Hammonds,Defendants-Appellees.
No. 91-7046.
United States Court of Appeals,Eleventh Circuit.
March 5, 1992.
1
Bredhoff & Kaiser, Andrew D. Roth and Robert H. Chanin, Washington, D.C., for plaintiff-appellant.
2
Lange, Simpson, Robinson & Somerville, Gaile Pugh Gratton, Thomas F. Campbell and Peyton Lacy, Jr., Birmingham, Ala., for defendants-appellees.
3
Appeal from the United States District Court for the Northern District of Alabama.
4
Before FAY and BIRCH, Circuit Judges, and KAUFMAN*, Senior District Judge.
5
KAUFMAN, Senior District Judge.
6
Appellant, Benjamin Hardy (Hardy), was a tenured employee of the appellee, Birmingham Board of Education (Board), and worked as the head custodian at that appellee's Fairview School.1 On February 8, 1989, the Board sent Hardy a notice of proposed termination for "neglect of duty, failure to perform his duties in a satisfactory manner, and other good and just cause." At the time Hardy received the notice, he had been an employee of the Board for ten years.2 As an employee of the Board, Hardy was covered by Alabama's Fair Dismissal Act (Act), Ala.Code §§ 36-26-100 to 108 (1987) which provides dismissal procedures for non-teacher school board employees. Hardy had acquired "nonprobationary status" under the Act, which meant that his employment could be terminated only for specific reasons and in accordance with a specified procedure, all as set forth in the Act. That procedure includes the right to notice and a hearing before the Board and the right to appeal an adverse Board decision to a mutually agreed upon hearing officer or to a three-member employee review panel.
7
Hardy contested the proposed termination of his employment. The Board held a hearing and thereafter voted to terminate Hardy's employment. Hardy then filed a timely notice of appeal of the Board's decision pursuant to the provisions of the Act, choosing to appeal to a three-member employee review panel. Under the Act's provisions, such a panel is composed of one person selected by the employing board and another selected by the employee. The third member is selected by mutual agreement of the "two parties."3 In the event the two parties cannot agree upon a third member within 10 days following the appointment of the second member, the probate judge of the county in which the dispute arose is required to submit the names of three individuals whom the judge believes are qualified to serve.4 The parties are each entitled to strike one name; the person whose name remains becomes the third member of the panel.
8
The Board chose as its panel member an employee of its personnel department. Hardy chose Sarah Summerville, his union representative, as his panel member. Because the two parties were unable to agree with respect to a person to serve as the third member of the panel, the Jefferson County probate judge5 submitted a list of three names from which a local attorney emerged as the panel's third member. The latter chaired the panel.
9
The panel held four days of hearings. On the next to the last day of hearings, the Board moved that panelist Summerville recuse herself on the ground that she had "independent knowledge of some of the facts surrounding this particular case"--acquired from her contacts with Hardy in her capacity as his union representative. Summerville apparently declined to recuse herself, at least in part, because union employees and school board employees had regularly been appointed to serve on employee review panels, notwithstanding their prior involvement in the underlying dispute.
10
The employee review panel issued a unanimous decision on July 14, 1989, concluding that Hardy had been wrongfully terminated by the Board and that he "should be reinstated immediately to the position of custodian." A copy of that decision was sent to respective counsel for Hardy and the Board. Hardy's counsel then wrote to the panel requesting clarification and modification of the decision to provide Hardy with backpay. Several weeks later the Board's counsel wrote to the panel challenging the validity of the panel's decision on several grounds, one of which was that the panel had exceeded its authority under the Act because it did not make a finding as to whether the Board's decision was based on one or more grounds specified by the Act. Counsel for the Board concluded his letter by stating that "Mr. Hardy will not be reinstated." The letter contained no indication that the Board intended to appeal the panel's decision. The panel chairperson, on August 14, 1989, in a written response, accepted personal responsibility for failing to cite the relevant provisions of the Act upon which the panel relied and stated that the panel's decision "was that the action of the Birmingham Board of Education was arbitrary, unjust and unwarranted." The written response also addressed Hardy's counsel's concern about backpay, stating that the panel had concluded that Hardy should be awarded backpay.
11
After waiting a month for the Board to comply with the panel's decision, and in the light of the unequivocal position of the Board that it would not, as stated in the Board counsel's letter of August 14, 1989, rehire Hardy, the latter filed in the Circuit Court of Jefferson County, Alabama, on September 15, 1989, a "Petition for Writ of Mandamus/Damage/Preliminary and Permanent Injunctive Relief." In that petition, Hardy alleged, inter alia, that the Board's failure to comply with the unappealed "final and binding" decision of the employee review panel was a clear violation of the Act, and asked the state court to issue a writ of mandamus directing the Board to reinstate him to his position with backpay. In addition to that state law claim, Hardy also claimed that the Board's failure to comply with the employee review panel's decision deprived him of a property right and of due process of law in violation of the Fourteenth Amendment to the United States Constitution and of 42 U.S.C. § 1983.6
12
The Board, on the basis of Hardy's federal constitutional and federal statutory claims, removed the case to the United States District Court for the Northern District of Alabama. On the merits, the Board contended that because the Board was exercising "discretionary duties" in deciding to terminate Hardy, the latter's reinstatement was not a ministerial duty subject to mandamus. In addition, the Board asserted that the employee review panel's decision was defective because the panel had made no specific determination that the Board's termination of Hardy was based on a statutorily permissible ground. In a later Amended Response to Hardy's petition, the Board additionally contended that the failure of Summerville to recuse herself from the employee review panel denied the Board due process of law under the United States Constitution and Alabama's Constitution and was in derogation of the Board's common-law right to a fair and impartial hearing. The Board asked the federal district court to enjoin enforcement of the panel's decision, to render the panel's decision a nullity and to affirm the Board's termination of Hardy.
13
After Hardy and the Board filed cross-motions for summary judgment, the district court dismissed Hardy's Section 1983 claim, observing that "[t]he due process and notice given in this case were sufficient to comply with federal constitutional requirements." Although Hardy argued that the panel's decision to reinstate him created a new property right which was violated without due process of law by the Board, the district court rejected that contention, stating that the "panel's decision and the Board's treatment of it are part and parcel of the ongoing proceedings regarding plaintiff's original property interest in his employment created by the Fair Dismissal Act." The district court also determined that the termination and reinstatement at issue were not ministerial acts subject to a writ of mandamus, citing Harris v. Birmingham Board of Education, 817 F.2d 1525, 1526 (11th Cir.1987), and that the panel's order should be vacated, an entirely new panel named, and a new hearing held. In so doing, the Court referred to "the blatant extrajudicial knowledge and extrajudicial involvement in the case of panel member Sarah Summerville, plaintiff's representative, and the review panel's failure to make findings of fact"7 and wrote that "[w]hile some degree of partisanship on the part of the panelist chosen by each party may be anticipated, extrajudicial knowledge and activity by a panelist fatally taints the proceedings." The district court also concluded that "a basic tenet of administrative law is that the grounds of an administrative decision must be disclosed in order for the court to determine whether the decision was based on substantial evidence and proper legal standards," and that the panel's revised "findings" in its letter dated August 14, 1989, merely tracked the catch phrases from the Act and were insufficient to meet the level of specificity required to provide meaningful court review.
I.
14
In this appeal, appellant has abandoned his federal claims. That abandonment was specifically reaffirmed by appellant's counsel during oral argument upon questioning by one or more members of this Court. Accordingly, with only state law issues pending, the sole subject matter jurisdictional base is pendent jurisdiction. If the Board is a state agency, a position which the Board espoused below, then Hardy's state law claims may well be barred by the teachings of Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Whether a city or county board of education "is to be treated as an arm of the State partaking of the State's Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend ... depends, at least in part, upon the nature of the entity created by state law." Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). In Stewart v. Baldwin County Board of Education, 908 F.2d 1499, 1509-11 (11th Cir.1990), this Court, applying Mt. Healthy, held that under Alabama law the county school board therein involved was not an arm of the state. The question arises as to whether the appellee-Board is or is not an arm of the State of Alabama. If it is, then the federal court below was jurisdictionally barred from considering appellants' pendent state law claims. However, even if the Board is not a state agency, the district court--although not jurisdictionally barred from reaching the pendent issues--nevertheless erred in exercising its pendent jurisdiction for the reasons set forth infra in this opinion.
II.
15
The state law questions presented in this appeal concern the interpretation of Alabama's Fair Dismissal Act, and specifically include whether the district court erred (1) in holding that Hardy was not entitled under Alabama law to a writ of mandamus ordering the Board to comply with the decision of the employee review panel issued pursuant to the Act, because compliance with the decision was not a ministerial act; (2) in concluding that the decision of the employee review panel was invalid because Hardy's representative on the panel had "extrajudicial" knowledge of the case; (3) in determining that the decision of the employee review panel was defective under Alabama law because the panel failed to make specific findings of fact to support its decision, and, (4) if no such specific fact-finding is required, whether the court erred in vacating the decision and ordering the establishment of a new panel rather than remanding the case to the existing panel with instructions to make the requisite findings of fact.
16
This case came before the court below upon removal from state court by appellants. The basis for such removal was that Hardy had alleged federal causes of action. The district court, however, ruled in a summary judgment context that Hardy had failed to state a cause of action under Section 1983 and did not specifically address Hardy's allegations of federal constitutional violations. Nor, in this appeal, have either Hardy or the Board pressed any federal law issue, constitutional or statutory. Nevertheless, the court below went on to decide the pendent state law issues and both appellant and appellee apparently urge us to do likewise. That we may not do.
17
In United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court concluded that federal courts have the power to hear state law claims arising out of a "common nucleus of operative fact" with the federal claims. Id. at 725, 86 S.Ct. at 1138. However, the Court also added that such pendent jurisdiction should be exercised on a discretionary basis by federal courts and that, in exercising such discretion, federal courts should keep in mind that the "justification [for pendent jurisdiction] lies in considerations of judicial economy, convenience and fairness to litigants." Id. at 726, 86 S.Ct. at 1139. The Supreme Court went on to state in Gibbs:
18
[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.
19
Id. (footnote omitted) (emphasis added). More recently, in Carnegie-Mellon University v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988), the Supreme Court, while noting that Gibbs did not establish "a mandatory rule to be applied inflexibly in all cases," id. at 350 n. 7, 108 S.Ct. at 618 n. 7, reiterated its earlier view that "when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice." Id. at 350, 108 S.Ct. at 618 (footnote omitted). In that context we examine the state law issues presented in this case.
III.
20
The Alabama Fair Dismissal Act was enacted in 1983 and provides the procedures for "terminating the employment of a full-time nonteacher or non-classified school system employee...." Bolton v. Bd. of School Comm'rs, 514 So.2d 820, 822 (Ala.1987); see also Ala.Code §§ 36-26-100 to 108 (1987). The Act's purpose is "to provide non-teacher employees a fair and swift resolution of proposed employment terminations." Bolton, 514 So.2d at 824.
21
The Alabama Act "is not a model of legislative clarity." Washington v. Bessemer Bd. of Educ., 547 So.2d 888, 891 (Ala.Civ.App.1989). The provisions of the Act specifically at issue in this case provide:
22
[§ 36-26-105.] An appeal of the decision of the employing board may be filed by the employee within 15 days of receipt of the board's decision.... [T]he employing board and the employee may ... select a panel of three persons, one selected by the employing board, and another selected by the employee and a third agreed upon by the two parties listed hereinabove which shall constitute an employee review panel to hear the employee's appeal. If there is no agreement on the selection of a third member within 10 days following the selection of the second member, the probate judge of the county in which the dispute originated shall submit the names of three individuals who are qualified electors of that same county who, in the probate judge's opinion, would be qualified through their experience and training to render a fair and impartial decision as the third member of the employee review panel.... From these three names, the employing board shall then strike the first name and the employee shall strike the second name with the person whose name remains becoming the third member of the employee review panel.
23
[§ 36-26-106.] Upon the employee review panel's selection to hear a case, the panel shall within 10 days establish a date, place, and time for the hearing to be conducted.... Upon the completion of the de novo hearing, the panel's decision must be rendered within 45 days.... In making its decision, the panel shall consider whether the action of the board or its administrative staff was arbitrary or unjust or for political or personal reasons on the part of any member of the board or its staff and whether the board's action was warranted based upon the facts of the case and the employment record of the employee. The decision of the panel shall be final and binding upon the parties.
24
Ala.Code §§ 36-26-105 and -106 (emphasis added). The statute does not specify whether "extrajudicial knowledge" of the dispute by one or both of the two party-appointed panel members "fatally taints" the panel's proceedings, whether mandamus is the appropriate means of enforcing a panel's decision, whether the panel must make specific findings of fact, or whether, in the absence of such findings, a new panel must be appointed to make such findings of fact. Therefore, it is necessary to look to cases interpreting the statute for guidance with respect to those questions.
25
The district court held--with no citation to supporting authority--that extrajudicial knowledge by one of the party-appointed panelists "fatally taints" the proceedings. The issue apparently is one of first impression under Alabama law. The statute itself does require that the three persons from whom the third panel member is to be chosen are to be persons "qualified ... to render a fair and impartial decision." Ala.Code § 36-26-105 (emphasis added). However, the statute contains no such qualifying language for the party-appointed panel members.
26
Several Alabama cases involving the Act refer to the third non party-appointed panel member as the "neutral" member of the panel, thus perhaps suggesting that the other two members may not need to be neutral. See, e.g., Ex parte Holifield, No. 89-984, 1991 WL 32273, at * 1 (Ala. Feb. 15, 1991) ("neutral member and chairman of the review panel"); Hutchinson v. Alabama Inst. for Deaf & Blind, 578 So.2d 1305, 1306 (Ala.Civ.App.1990) ("selection of a third, neutral panel member"), rev'd on other grounds sub nom. Ex parte Alabama Inst. for Deaf & Blind, 578 So.2d 1308 (Ala.1991). But see Ledbetter v. Jackson County Bd. of Educ., 508 So.2d 244, 246 (Ala.1987) (an employee's entitlement to "present her position before the neutral decision-making body for which the Act provides."). Also, in Lozano v. Maryland Casualty Co., 850 F.2d 1470, 1472 (11th Cir.1988), cert. denied, 489 U.S. 1018, 109 S.Ct. 1136, 103 L.Ed.2d 197 (1989), a case involving a three-member arbitration panel provided for in an insurance agreement, this Court wrote that "an arbitrator appointed by a party is a partisan only one step removed from the controversy and need not be impartial." But no decision of this Court or seemingly of any Alabama Court clearly answers the question of whether the employer and employee representatives on the arbitration panel herein should be neutral.
27
Another difficult issue of state law presented in this appeal concerns the extent to which the review panel must make findings of fact. In Birmingham Bd. of Educ. v. Holifield, No. Civ. 7249, at * 1, 1991 WL 128482 (Ala.Civ.App. July 5, 1991), on remand from the Supreme Court of Alabama, the Court of Civil Appeals of Alabama noted that, "while the panel made no specific findings, presumably it determined that the decision by the Board to terminate the employee was simply not warranted...." Id. In Marshall County Board of Education v. State Tenure Commission, 291 Ala. 281, 280 So.2d 130, 137 (1973), the Supreme Court of Alabama construing the Alabama Teacher Tenure Act, held that "it is imperative that some specificity be given by the Commission to support its reversal of the findings of the only trier of facts, the Board of Education.... [p] [W]e must insist on some reasonable statement based on the evidence of reasons for overturning the action of the Board."
28
Although Alabama's Teacher Tenure Act and Fair Dismissal Act are similar in language, purpose, and effect, we cannot be certain that the Alabama Supreme Court would necessarily impose the same factfinding requirements on an employee review panel--which has the power of de novo review--as it has upon the Teacher Tenure Commission--which seemingly does not have de novo review power. See Marshall County, 280 So.2d at 133. In any event, the Supreme Court of Alabama concluded that the proper remedy for the Commission's failure to find facts was remand to the Commission with instructions to make sufficient findings of fact.
29
The district court in this case also stated that "[t]he termination and reinstatement at issue in this case are not ministerial acts subject to a writ of mandamus," citing Harris v. Birmingham Bd. of Educ., 817 F.2d 1525, 1526 (11th Cir.1987). In Harris, in the context of determining whether a state cause of action for mandamus was properly removable to the federal court, this Court stated that "[r]einstatement of an employee terminated in violation of procedural due process is not a ministerial act subject to a writ of mandamus. Cf. Gaines v. Thompson, 74 U.S. (7 Wall.) 347, 19 L.Ed. 62 (1869)." Id. In Harris, this Court was not called upon to address--nor did it address--the appropriateness of mandamus under Alabama law as a remedy for alleged violations of an Alabama statute such as the Fair Dismissal Act. Under Alabama law, " '[m]andamus will be granted only when there is a clear, specific legal right shown for the enforcement of which there is no other adequate legal remedy'.... 'The right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief'.... [But if] 'judgment or discretion is abused, and exercised in an arbitrary or capricious manner, mandamus will lie to compel a proper exercise thereof.' " Goolsby v. Green, 431 So.2d 955, 958-59 (Ala.1983), quoting Campbell v. City of Hueytown, 268 So.2d 3, 4 (Ala.1972), McDowell-Purcell, Inc. v. Bass, 370 So.2d 942, 944 (Ala.1979). The Alabama courts have granted mandamus requiring an employer--school board--to act in accordance with what an employee alleged was his or her right under the Fair Dismissal Act. See Washington v. Bessemer Bd. of Educ., 547 So.2d 888 (Ala.Civ.App.1989); Bolton v. Bd. of School Comm'rs. of Mobile County, 514 So.2d 820 (Ala.1987).
30
It is in the context of the present state of Alabama law with regard to the state law issues presented in this appeal--namely neutrality vel non of the panel members designated respectively by the employer and the employee; the need for the panel to make specific findings of fact; and the availability of mandamus relief--that this Court reaches the issue of exercise of pendent jurisdiction by the federal district court.
IV.
31
Both parties argue that the district court did not abuse its discretion in reaching and determining the pendent state law claims. Hardy argues that the district court's consideration of those issues furthered the statutory goal of providing a fair and swift resolution of a proposed employment termination. However, Hardy also argues that the district court failed to apply controlling Alabama law with regard to the appropriateness of mandamus as a remedy and with regard to the proper remedy for the panel's failure to make specific findings of fact. While Hardy concedes that the issue of extrajudicial knowledge on the part of a panel member appears to be a case of first impression, he argues nonetheless that the issue is not so novel as to make it advisable for a federal court to refrain from acting so as to enable a state court to determine those issues. The Board, on its part, argues that the district court's conclusions of law were correct and should be affirmed by this Court.
32
It is, of course, true that a remand at this time to the state court will cause some delay. That is unfortunate. But the negative effect of such delay is outweighed by the beneficial effect of permitting an Alabama state court to determine the proper interpretation to be given to an Alabama statute which is far from clear on its face, or under Alabama case law.
33
State courts, not federal courts, are the final expositors of state law. See, e.g., England v. Louisiana Medical Examiners, 375 U.S. 411, 415, 84 S.Ct. 461, 464, 11 L.Ed.2d 440 (1964) (federal abstention doctrine recognizes the "role of state courts as the final expositors of state law"); United Gas Pipe Line Co. v. Ideal Cement Co., 369 U.S. 134, 135, 82 S.Ct. 676, 677, 7 L.Ed.2d 623 (1962) (per curiam) ("The interpretation of state law by the Court of Appeals, in an opinion by its Alabama member, was rendered in advance of construction of the [statute] by the courts of the State, which alone, of course, can define its authoritative meaning.").
34
In this case, in which the state law issues are of importance, a remand of those questions to the Circuit Court of Jefferson County, Alabama, will enable appellant, seemingly without being subject to problems such as limitations, see Carnegie Mellon University, supra 484 U.S. at 351-52, 108 S.Ct. at 619, to pursue his state law claims in that state court. In that context and in the absence of any issues of federal law, and with no federal subject matter jurisdiction other than pendent jurisdiction being present, pendent jurisdiction may not be exercised by a federal court. Accordingly, we hereby remand this case to the district court with instructions first to dismiss, with prejudice, all of Hardy's federal law contentions and then to remand this case, with all of appellant's state law contentions extant, to the Circuit Court of Jefferson County, Alabama.
35
REVERSED and REMANDED with instructions.
*
Honorable Frank A. Kaufman, Senior U.S. District Judge for the District of Maryland, sitting by designation
1
The other appellees are members of the Board
2
On September 21, 1988, when Hardy met with the Board's Director of Operation and Maintenance, the director told Hardy that he and the school principal were concerned that Hardy was not properly performing his job duties. At that meeting, Hardy signed a letter of resignation that had been prepared by the director. Hardy then went to his local union headquarters and met with Sarah Summerville, the local union representative. Hardy explained the allegations made by his supervisors and his responses to those allegations. Summerville advised Hardy that Hardy had several days in which to rescind his resignation if Hardy desired to do so. Hardy drafted a letter rescinding his resignation, which a union employee typed and Hardy signed. Summerville delivered that letter addressed to the Birmingham City School Superintendent and briefly discussed with the Superintendent the contents of the letter. Having rescinded his resignation, Hardy continued to work as head custodian at Fairview until February, 1989
3
The statutory provision reads as follows:
[T]he employing board and the employee may ... select a panel of three persons, one selected by the employing board, and another selected by the employee and a third agreed upon by the two parties listed hereinabove which shall constitute an employee review panel to hear the employee's appeal.
Ala.Code § 36-26-105 (1987).
4
The statute prescribes the characteristics which the probate judge is directed to consider in selecting the three names to be submitted:
[T]he probate judge of the county in which the dispute originated shall submit the names of three individuals who are qualified electors of that same county who, in the probate judge's opinion, would be qualified through their experience and training to render a fair and impartial decision as the third member of the employee review panel.
Ala.Code § 36-26-105 (1987).
5
Birmingham is in Jefferson County
6
On September 19, 1989, before the Board had been served with Hardy's state court petition, the Board's counsel responded to the panel's August 14, 1989 letter and stated that the letter did not adequately respond to the Board's objections to the panel's decision. In addition, the Board's counsel reiterated that "the Board is not required to reinstate Mr. Hardy and he will not be reinstated."
7
Although the Board based its challenge to Summerville's failure to recuse herself on both federal constitutional and state law grounds, the district court did not specify the legal basis for its determination. The Board, however, in one of its briefs filed in this appeal, states that the district court "implicitly rejected defendants' constitutional due process claim."
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194 Ga. App. 687 (1990)
391 S.E.2d 775
E. H. CRUMP COMPANY OF GEORGIA, INC. et al.
v.
MILLAR.
A89A1839.
Court of Appeals of Georgia.
Decided February 14, 1990.
Rehearing Denied March 5, 1990.
Smith, Gambrell & Russell, David A. Handley, Thomas E. McCarter, Stack & Rogers, Ronald W. Rogers, for appellant.
Alembik, Fine & Callner, Bruce W. Callner, Kathy L. Portnoy, *693 Keenan G. Loomis, for appellee.
McMURRAY, Presiding Judge.
Plaintiff Francis R. Millar brought suit against defendants E. H. Crump Company of Georgia, Inc. ("Crump"), David D. Henritze, individually and as Crump's president, and Gary Shertenlieb, individually and as Crump's senior vice president, seeking damages for breach of contract, fraud, defamation, and tortious interference with contractual relations. With regard to the breach of contract count, plaintiff alleged that Crump was obligated to pay him the amount of $358,994.26, representing compensation earned by plaintiff as an employee of Crump during fiscal year 1987. Defendants answered the complaint, denying any liability to plaintiff. In addition, defendants counterclaimed seeking damages and a permanent injunction on the grounds that plaintiff breached his fiduciary duties and a covenant not to compete "commencing around August of 1987."
Following discovery, plaintiff moved for partial summary judgment upon the breach of contract count of the complaint, contending he was entitled to be paid the compensation earned during fiscal 1987 as a matter of law. Defendants opposed the motion, asserting plaintiff was not entitled to be compensated for his services because, beginning August 4, 1987, and continuing until October 12, 1987, (when plaintiff's employment with Crump ended), plaintiff engaged in conduct in violation of his fiduciary duties as an employee of Crump. The trial court granted plaintiff's summary judgment motion in part, ruling plaintiff was entitled to recover any compensation earned prior to August 4, 1987, whether or not he breached his fiduciary duties after that date. Defendants appeal. Held:
1. Plaintiff's motion for damages for frivolous appeal is denied.
2. OCGA § 10-6-31 provides: "An agent who shall have discharged his duty shall be entitled to his commission and all necessary expenses incurred about the business of his principal. If he shall have violated his engagement, he shall be entitled to no commission." Relying on the last sentence of this Code section, defendants take the position that plaintiff forfeited his right to receive any compensation earned during fiscal year 1987 because he breached his fiduciary duty to Crump beginning August 4, 1987. We think this interpretation of OCGA § 10-6-31 is overly broad. By its plain terms, the first sentence of the Code section provides that an agent is entitled to receive compensation when he acts on behalf of his principal. Read in conjunction with the last sentence of the Code section, it is clear that an agent is entitled to compensation during the period of time in which *688 he acts in a fiduciary manner; and he forfeits compensation only during the period of time in which he fails to act in a fiduciary manner. See Vinson v. E. W. Buschman Co., 172 Ga. App. 306, 310 (3), 311 (323 SE2d 204). It follows that the trial court's award of partial summary judgment to plaintiff was proper.
3. We cannot agree with the conclusion that an issue of fact exists concerning the date of plaintiff's alleged breach of duty. Defendants have not challenged the August 4, 1987, date. In its order granting plaintiff partial summary judgment, the trial court observed that defendants "specifically" alleged the breach occurred on August 4, 1987. Defendants have not asserted on appeal that the trial court erred in choosing the August 4, 1987, date. The sole contention of defendants is that plaintiff is entitled to no commissions because he breached his fiduciary duty after August 4, 1987. Thus, in effect, defendants concede that any breach by plaintiff occurred after August 4, 1987. Besides, we see no evidence whatsoever that plaintiff breached his fiduciary duties prior to that date.
Judgment affirmed. Carley, C. J., Deen, P. J., Banke, P. J., Birdsong, Pope and Cooper, JJ., concur. Sognier and Beasley, JJ., dissent.
BEASLEY, Judge, dissenting.
I respectfully dissent because the record does not establish without dispute that no act of unfaithfulness, or omission of faithfulness, occurred prior to August 4, 1987, which is the day before plaintiff gave oral notice to his employer that he was terminating his employment and the day his planned new employer memorialized negotiations to that point in a letter to plaintiff. There is evidence, both in that letter and otherwise, that plaintiff planned on taking two employees of Crump with him and had tentatively agreed that their remuneration for the first year would come out of his income. One of these employees was senior marketing account manager. In addition, there is evidence that within a few days of plaintiff's departure from Crump in mid-October, several sizeable Crump accounts switched their business to plaintiff's new employer. This raises a reasonable inference that they were solicited before that date, and the date of first soliciatation is not shown to have been after August 4.
Appellants did not limit their assertions in the response and brief to plaintiff's motion for summary judgment below nor in the enumeration of errors or brief in this court. Because there is evidence to support a finding of disloyalty prior to August 4, and the law allows and even considers the pleadings amended to conform to the evidence, the activities of Millar related to compensability prior to August 4 are germane to the summary judgment ruling. OCGA § 9-11-15 (b); McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 514 (250 *689 SE2d 424) (1978).
I do agree that the code section, OCGA § 10-6-31, is applicable. But it alone does not control.
In applying the statutory principles, the contract which governs the relationship between the employer and the employee must be examined. The principle is made a part of every contract of agency. Williams v. Moore-Gaunt Co., 3 Ga. App. 756, 759 (60 SE 372) (1907). But the general principles do not provide the whole answer in every given case.
The several contracts which, taken together as intended, govern the relationship between the parties during the time in question, imply if not express the same principles and add a determinative factor.
The amended compensation schedule which was to govern calendar years 1987 and 1988 provided: "In the event of the Employee's termination of employment for any reason, . . . earnings and expenses and incentive compensation shall be computed as of the end of the month preceding the month in which termination took place, and employee's percentage shall be computed thereon and Employee shall be paid all amounts due under Paragraph 1 no later than seventy-five (75) days after the date of termination. . . ."
Paragraph 1 provided for $150,000 base salary for each of the two years plus, "as incentive compensation, 30 percent of annual Net Commission Income of the Company attributable to accounts produced and serviced by Employee" except that the percentage on certain named accounts would be 18 percent. Annual was designated to mean calender year, and the compensation was to be paid by the end of February of the following year.
A separate document, the "Agreement and Covenants," contains anti-compete provisions in specific detail, for the period of plaintiff's employment and for two years thereafter. It acknowledges the employer's desire to protect its goodwill and it acknowledges the employer's skills in the business. For the period during his employment, employee agreed not to "use or divulge any confidential business information or trade secrets of the Company . . . relating to customers or prospects . . . and includes, but is not limited to, customer and account lists, methods of operation, renewal information, audits, inspection reports, coverages, order information, records of inception or expiration dates of coverages, and personnel data."
The "Employment Contract" itself provides: "Employee agrees to devote full time, attention and best efforts in the faithful discharge of such duties and in the development and furtherance of Employer's business, . . . Employee agrees that, as long as he is employed by Employer, he will not undertake the planning or organizing of any business activity competitive with Employer's .. . business nor engage in *690 any such activity."
Discharge for cause is specified to include: "if Employee: (i) performs any act intended to inflict damage on the Employer, (ii) violates any provision of this Agreement, ..."
It also expressly provides: "In order that the Employer shall receive and be able to maintain the benefit of the goodwill which Employer enjoys connected with certain customers and accounts of Employer . .., Employee agrees that during the term of this Agreement . . . [he will] be bound by all terms and conditions of the Agreement and Covenants Not to Compete. . . ."
Thus the contract package itself specified that the employee must discharge his duties in order to be entitled to his commission. It also, at least impliedly, provided the converse which is expressed in the code section, that he is entitled to no commission if he violates his engagement.
Since plaintiff was required to faithfully discharge his duties, with loyalty solely to this employer, and was subject to termination if he violated any provision of the contract including those related to faithfulness, he could not be entitled to commissions earned from the date the unfaithfulness commenced. Plaintiff has not overcome defendants' evidence that disloyalty began some time prior to August 4. Plaintiff would only be entitled to what he "earned," as that term is contemplated by the contract package, while loyal. "When" or at what point he earned them is not determinable by an application of the statute but is found in the contracts. Even though the code provision uses "when" in its title, that refers to the agent's behavior and not to time of vesting.
Based on the laws governing contract construction, the time up to which plaintiff would be entitled to salary plus commissions would be the time during which the salary and commissions vested (and not divested by such later events as return of premium) up to the date of first breach and regardless of the fact that computation and payment of those commissions and of deferred compensation was to occur months later. Appellants admitted that plaintiff earned his commissions upon clients' payments of the insurance premium.
The contract did not provide that the employee would forfeit earned commissions for the whole year if he violated the terms of the contract by disloyalty or any other breach. Nor does the code provision. It does not impliedly embrace a "relation back" principle, and such would be greater forfeiture than is statutorily expressed. The law abhors forfeiture unless it is plainly intended by the legislature. Anderson v. Automatic Sprinkler Corp., 147 Ga. App. 236, 239 (2) (248 SE2d 507) (1978), rev'd on other grounds 243 Ga. 867 (257 SE2d 283) (1979); see also Freeman v. Decatur Loan &c. Corp., 140 Ga. App. 682, 684 (2) (231 SE2d 409) (1976). Only a forfeiture of the commissions *691 earned while violating the engagement is clearly provided for, as were the cases in Reisman v. Massey, 84 Ga. App. 796 (67 SE2d 585) (1951), and Rood v. Anchors, 42 Ga. App. 76 (155 SE 65) (1930). If the legislature had meant there would be a forfeiture of commissions earned when the employee was faithfully serving the employer, and up to the commencement of the contract or the engagement, it should have said so. Statutes must be given their plain and logical meaning. See P. L. A. v. State of Ga., 172 Ga. App. 820, 821 (1) (324 SE2d 781) (1984) (non-precedential); see also DeWaters v. City of Atlanta, 169 Ga. App. 41, 45 (2) (311 SE2d 232) (1983).
Williams, supra at 760, stated that it is the right to the benefit earned on "the transaction" which is forfeited. However, when the agency extends to numbers of transactions completed by the agent, as here, the forfeiture is not limited to transactions in which the disloyalty occurred. Vinson v. E. W. Buschman Co., 172 Ga. App. 306, 310 (3) (323 SE2d 204) (1984), approved as legally correct a jury charge which stated that if the jury found the agents were unfaithful, the agents could not be permitted to retain any compensation received "during the period you find them to have been unfaithful. . . ." Thus, under the code, the unfaithfulness need not have occurred within the framework of the transaction which yielded the commission.
An examination of the previous cases in Georgia on the subject of forfeiture of compensation due to disloyalty of agent may be summarized to provide the answer in this case. When the engagement of the agent is for a single transaction, such as the sale of a parcel of real estate or the sale of a business, the entire commission (the compensation) for the engagement is forfeited, as in Williams, supra, Rood, supra, and Reisman, supra. Where the engagement is an employment contract for a period of time and involving an unspecified number of transactions, such as sales, the forfeiture is not of all of the compensation for the entire period of the engagement but rather "any compensation received (in the sense of earned) . . . during the period (the agent has been) unfaithful to the principal," as in Vinson, supra.
Note that in the former, the compensation is indivisible; there is one form of compensation, a commission, earned when the sale is completed; the loyal agent is entitled to no compensation for working long and hard if he achieves no sale. So the disloyal agent forfeits the entire commission even if he was loyal at some periods of time and in some of his activities in connection with efforts on behalf of the principal.
On the other hand, in the latter, the compensation is divisible, such as salary paid for specific progressive periods of time as every week or every month, or commission paid for specific sales. Since the disloyalty is again related to the nature of the employment and the *692 duties owed, the agent forfeits all of the compensation from the time his disloyalty commenced, whether he was loyal in some duties and with regard to some commission-producing transactions or not. It is the nature of the contract, and its terms, that govern what precisely is forfeited.
In this case involving an employment contract, the alleged disloyalty apparently commenced a substantial period of time after the engagement was undertaken. The compensation was salary, payable monthly, so that forfeiture is easy to compute once the date disloyalty started is determined. It was also annual "incentive compensation, thirty percent (30%) of annual Net Commission Income of the Company attributable to accounts produced and serviced by Employee; . . ."
It may be argued that this annual benefit was dependent on faithful performance for that year (or period of time employee worked for employer, assuming loyalty as provided by the contract, which in this case would extend two years beyond termination for certain activities). This construction is strengthened by the designation of this benefit as "incentive compensation." Incentive to do what? To make the particular sale? Or to be loyal and income-producing for a year (or period of time described earlier)? If the latter, commissions could be deemed forfeited if the employee was disloyal during the year.
The decision need not be made in this case, by court or by jury, because the parties had provided a contract answer. If the employment is terminated "for any reason," commissions earned up to the end of the prior month will be paid. This is what was agreed to be paid, even in the face of express provisions regarding loyalty and regarding disloyalty as a cause for termination, and Crump admitted that Millar had "earned" the commissions when the sales were complete; this would be antagonistic to the concept that commissions were not earned until the year's end of faithful service. "Incentive" meant incentive to make that sale.
Since defendant has not conclusively shown that no compensation-forfeiting disloyalty occurred before August 4, and there is affirmative evidence that there were unfaithful acts prior to that date, the court was compelled to deny summary judgment to defendant on this aspect of the case.
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334 U.S. 304 (1948)
BRIGGS, ADMINISTRATRIX,
v.
PENNSYLVANIA RAILROAD CO.
No. 530.
Supreme Court of United States.
Argued March 30, 1948.
Decided May 24, 1948.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
*305 Sol Gelb submitted on brief for petitioner.
William J. O'Brien, Jr. argued the cause for respondent. With him on the brief were Louis J. Carruthers, Hugh B. Cox and Arthur R. Douglass.
MR. JUSTICE JACKSON delivered the opinion of the Court.
This case first presents the question whether a plaintiff recovering under the Federal Employers' Liability Act, 45 U.S.C. § 51, is entitled to have interest on the verdict for the interval between its return and the entry of judgment, where the Circuit Court of Appeals' mandate which authorized the judgment contains no direction to add interest and is never amended to do so.
The jury returned a verdict of $42,500. The District Court then granted a motion, as to which decision had been reserved during the trial, to dismiss the complaint for lack of jurisdiction, and the judgment entered was therefore one of dismissal. However, the Circuit Court of Appeals reversed, 153 F.2d 841, and directed that judgment be entered on the verdict for plaintiff. When the District Court entered judgment, it added to the verdict interest from the date thereof to the date of judgment. The mandate of the Circuit Court of Appeals had made no provision for interest. No motion to recall and amend the mandate had been made and the term at which it was handed down had expired. Motion to resettle so as to exclude the interest was denied by the District Court. The Circuit Court of Appeals has modified the judgment to exclude the interest in question and to conform to its mandate, 164 F.2d 21, and the case is here on certiorari, 333 U.S. 836.
*306 In its earliest days this Court consistently held that an inferior court has no power or authority to deviate from the mandate issued by an appellate court. Himely v. Rose, 5 Cranch 313; The Santa Maria, 10 Wheat. 431; Boyce's Executors v. Grundy, 9 Pet. 275; Ex parte Sibbald v. United States, 12 Pet. 488. The rule of these cases has been uniformly followed in later days; see, for example, In re Washington & Georgetown R. Co., 140 U.S. 91; Ex parte Union Steamboat Company, 178 U.S. 317; Kansas City Southern R. Co. v. Guardian Trust Co., 281 U.S. 1. Chief Justice Marshall applied the rule to interdict allowance of interest not provided for in the mandate, Himely v. Rose, 5 Cranch 313; Mr. Justice Story explained and affirmed the doctrine, The Santa Maria, 10 Wheat. 431; Boyce's Executors v. Grundy, 9 Pet. 275. We do not see how it can be questioned at this time. It is clear that the interest was in excess of the terms of the mandate and hence was wrongly included in the District Court's judgment and rightly stricken out by the Circuit Court of Appeals. The latter court's mandate made no provision for such interest and the trial court had no power to enter judgment for an amount different than directed. If any enlargement of that amount were possible, it could be done only by amendment of the mandate. But no move to do this was made during the term at which it went down. While power to act on its mandate after the term expires survives to protect the integrity of the court's own processes, Hazel-Atlas Glass Co. v. Hartford Co., 322 U.S. 238, it has not been held to survive for the convenience of litigants. Fairmont Creamery Co. v. Minnesota, 275 U.S. 70.
The plaintiff has at no time moved to amend the mandate which is the basis of the judgment. That it made no provision for interest was apparent on its face. Plaintiff accepted its advantages and brings her case to this Court, not on the proposition that amendment of the *307 mandate has been improperly refused, but on the ground that the mandate should be disregarded. Such a position cannot be sustained. Hence the question whether interest might, on proper application, have been allowed, is not reached.[1]In re Washington & Georgetown R. Co., 140 U.S. 91.[2]
Affirmed.
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE MURPHY join, dissenting.
We granted certiorari to resolve a conflict between the decision of the Circuit Court of Appeals, 164 F.2d 21, and one rendered by the like court for the Fifth Circuit in Louisiana & Arkansas R. Co. v. Pratt, 142 F.2d 847.
In each case the jury returned a verdict for the plaintiff, but the trial court nevertheless gave judgment for the defendant as a matter of law;[1] upon appeal that *308 judgment was reversed; and the cause was remanded with directions to enter judgment on the verdict. In both cases the appellate courts' mandates were silent concerning interest, but the trial courts included in the judgments interest from the date of the verdict, not merely from the time when judgment was entered following receipt of the appellate courts' mandates.[2] In the Pratt case this action of the trial court was sustained as conforming to the mandate; in this case the trial court's like action was reversed as being in excess of and, to that extent, contrary to the mandate.
The two cases thus present squarely conflicting decisions on two questions: (1) whether the appellate court's mandate includes the interest provided by 28 U.S.C. § 811,[3] although the mandate makes no explicit mention of interest; (2) whether, if so, the interest allowed by the section properly runs from the date of the verdict[4]*309 or only from the time of entering judgment after receipt of the appellate court's mandate. Both questions are necessarily involved on petitioner's presentation and should now be decided.
This Court, however, declines to answer the second question, because it determines the first in respondent's favor, accepting, erroneously I think, the decision of the Circuit Court of Appeals in this phase of the case.[5] That court construed its mandate as not including interest. This was on the basis that the mandate was silent concerning interest, mentioning expressly only the principal sum awarded by the verdict. In such a case the court said, "the District Court is without power to enter judgment for a different sum."[6] Hence, it was held, the mandate was violated when interest was added to that sum. 164 F.2d at 23. And even upon the assumption that the mandate might have been amended to include interest by timely application for that purpose, this could not be done after expiration of the term at which the judgment was rendered, as petitioner sought to have done.[7]Ibid.
*310 It is this treatment of the court's mandate, now accepted by this Court and forming the basis for its disposition of the case without reaching the question certiorari was granted to review, from which I dissent. It confuses settled lines of distinction between different statutes and of decisions relating to them. I think these were correctly drawn and ought to be maintained. If that were done, we would be forced to reach and decide the question now avoided concerning the effect of § 811.
Ordinarily it is for the court issuing a mandate to determine its scope and effect and other courts are bound by its determination. But this is not always so. If it were true, for example, that the silence of a mandate or a judgment regarding interest invariably precluded its recovery, the Court's decision and that of the Circuit Court of Appeals would be correct. But an explicit provision for interest is not always necessary to its inclusion, whether in a judgment or a mandate. In some instances interest attaches as a matter of law, even though the mandate or judgment is wholly silent regarding it. In others explicit mention is necessary to its inclusion. Blair v. Durham, 139 F.2d 260. and authorities cited.
Where the claim for interest rests upon statute, whether the one or the other effect results depends upon the terms and effect of the particular statute on which the claim is founded. Because not all statutes are alike in this respect, the terms and intent of each must be examined, when put in question, to ascertain whether the interest allowed attaches to the judgment or the mandate by operation of law or only upon explicit judicial direction. Usually this is resolved by determining whether the interest allowed is to be given in the court's discretion or as a matter of right. Blair v. Durham, supra.
As the Blair opinion points out, ordinarily there is no occasion to mention statutory interest expressly, since it *311 attaches as a legal incident from the statute allowing it.[8] On the other hand, it has often been declared that interest is not allowed on judgments affirmed by this Court or the Circuit Courts of Appeals unless so ordered expressly.[9] The Blair opinion, however, further notes that all the cases so declaring are founded upon another statute than the one involved here, namely, 28 U.S.C. § 878.[10] And, it may be added, the decisions relied upon by this Court and by the Circuit Court of Appeals in this phase of the case presently before us involved either § 878 or the allowance of other relief not based on § 811.[11]
It becomes important therefore to ascertain whether the two statutes, §§ 811 and 878, are alike in their effects as requiring or not requiring explicit mention of the interest provided for in order for it to be included in a *312 judgment or mandate. The two sections are very different in their terms. Section 878 authorizes the federal appellate courts to award damages for delay,[12] and in terms makes the award discretionary with the reviewing court. Schell v. Cochran, 107 U.S. 625. It is in connection with such awards, as has been stated, that the repeated decisions now applied to petitioner's claim, grounded solely on § 811, have held that interest is to be deemed denied unless explicitly mentioned in the mandate.[13]
On the other hand, § 811 is very different. Nothing in its terms permits an implication that the award of interest is to be made as a matter of judicial discretion. The language is mandatory.[14] The section's obviously discriminating use of words, emphasized by comparison with that of § 878, gives the interest it encompasses as a matter of right. United States v. Verdier, 164 U.S. 213. This is so whether that interest begins to run as of one date or another. Whatever interest the section allows attaches as an incident flowing from the statute and is dependent in no way upon judicial discretion or upon judicial inadvertence in failing to mention it. This was the effect of the decisions in the Pratt and Blair cases, as well as United States v. Verdier, supra.
The Court's decision ignores these vital differences in the statutes, their terms and effects. Consequently it misapplies the decisions relating to § 878 and other situations *313 where the relief sought was discretionary, to this claim arising only under § 811. The same thing happened in the Circuit Court of Appeals. However, the two sections differ so greatly in their terms, as bearing on whether the mandate's failure to mention interest excluded it, that there can be no justification for confusing or identifying them in this respect. The decisions construing § 878 are neither controlling nor pertinent to that problem when it arises under § 811.
Petitioner's only claim is under the latter section. He seeks as of right interest given by § 811 and attaching to the judgment entered in his favor regardless of the mandate's omission to mention interest. This claim in my opinion is well grounded, to whatever extent § 811 allows interest. To that extent interest attaches and was meant to attach by operation of law, and regardless of the mandate's specificity, to the judgment rendered for the plaintiff. The extent to which the section gives interest is, of course, a distinct question, depending in this case on whether the section contemplates that the interest shall begin to run at one date or another.
Since the Court does not decide that question, I reserve decision upon it. But I dissent from the refusal to decide it now. The question is of considerable importance for the proper and uniform administration of the statute; it is not entirely without difficulty;[15] and the uncertainty *314 as well as the conflict of decision should be ended. There is no good reason for permitting their indefinite continuance, to the perplexity of courts and counsel, and to an assured if unpredictable amount of injustice to litigants.
NOTES
[1] Compare Louisiana & Arkansas R. Co. v. Pratt, 142 F.2d 847, with Briggs v. Pennsylvania R. Co., 164 F.2d 21.
[2] "We do not consider the question as to whether interest was allowable by law, or rule, or statute, on the original judgment of the special term, or whether it would have been proper for the special term, in rendering the judgment, or otherwise, to have allowed interest upon it, or whether it would have been proper for the general term to do so; but we render our decision solely upon the point that, as neither the special term nor the general term allowed interest on the judgment, and as this court awarded no interest in its judgment of affirmance, all that the general term could do, after the mandate of this court went down, was to enter a judgment carrying out the mandate according to its terms, and simply affirming the prior judgment of the general term, and directing execution of the judgment of the special term . . . with costs, and without interest. . . ." 140 U.S. 91 at 97.
[1] In this case the complaint was dismissed on the ground that the plaintiff administratrix lacked capacity to bring the action; in the Pratt case the trial court found the verdict inconsistent with answers given to special interrogatories, and therefore gave judgment for the defendant.
[2] In the Pratt case the District Court allowed interest not only from the date of the verdict but also from the date of judicial demand. This was modified on appeal to allow interest only from the date of verdict. 142 F.2d 847.
[3] The section is as follows: "Interest shall be allowed on all judgments in civil causes, recovered in a district court, and may be levied by the marshal under process of execution issued thereon, in all cases where, by the law of the State in which such court is held, interest may be levied under process of execution on judgments recovered in the courts of such State; and it shall be calculated from the date of the judgment, at such rate as is allowed by law on judgments recovered in the courts of such State." Rev. Stat. § 966, 28 U.S.C. § 811.
[4] Although § 811 requires calculation of interest "from the date of the judgment," the claim is that, in circumstances like these, the words "the judgment" should be taken to specify not the time of entering judgment after appeal and issuance of mandate following reversal, but the time when judgment properly would have been entered but for the delay caused by the defendant's resistance to the plaintiff's rightful claim as established on appeal. Cf. Fed. Rules Civ. Proc., Rule 58. Petitioner fixes this time as the date of the verdict. It is not necessary now to consider whether, if petitioner's broad contention were accepted, the proper date would be that of the verdict or that on which the trial court concluded its consideration of the case and entered the original judgment for the defendant.
[5] The Circuit Court of Appeals not only rested upon its construction of its mandate and the view that it could not be altered after the term, but also decided the question concerning petitioner's right to interest under § 811 adversely to his claim that it begins to run prior to the date of the trial court's entry of judgment after remand. To what extent this ruling influenced the decision as to the mandate's effect is not clear.
[6] Citing In re Washington & Georgetown R. Co., 140 U.S. 91; Thornton v. Carter, 109 F.2d 316. See text infra at note 11.
[7] In the Pratt case the term of court at which the original mandate of the Circuit Court of Appeals had been handed down had similarly expired.
[8] Massachusetts Benefit Assn. v. Miles, 137 U.S. 689.
[9] See the cases cited in note 10.
[10] 139 F.2d 260, 261. The authorities cited were In re Washington & Georgetown R. Co., 140 U.S. 91; Boyce's Executors v. Grundy, 9 Pet. 275; De Witt v. United States, 298 F. 182; Green v. Chicago, S. & C.R. Co., 49 F. 907; Hagerman v. Moran, 75 F. 97.
[11] None of the cases on which this Court bases its decision involves § 811. They involve either § 878 (Boyce's Executors v. Grundy, 9 Pet. 275; In re Washington & Georgetown R. Co., 140 U.S. 91, which the majority emphasize by quotation); the allowance of interest in the absence of statute as, e.g., where goods are illegally seized and detained (Himely v. Rose, 5 Cranch 313; The Santa Maria, 10 Wheat. 431); or the granting of relief, other than interest, beyond that decreed in the mandate (Ex parte Sibbald v. United States, 12 Pet. 488; Ex parte The Union Steamboat Company, 178 U.S. 317; Kansas City So. R. Co. v. Guardian Trust Co., 281 U.S. 1).
Of the cases cited by the Circuit Court of Appeals, see note 6, In re Washington & Georgetown R. Co., supra, is a § 878 case, and Thornton v. Carter, 109 F.2d 316, does not turn on § 811.
Thus, none of the authorities relied on governs the question presented here, viz., whether under § 811 the mandate of the reviewing court excluded interest and was violated by its addition.
[12] The section is as follows: "Where, upon a writ of error, judgment is affirmed in the Supreme Court or a circuit court of appeals, the court shall adjudge to the respondents in error just damages for his delay, and single or double costs, at its discretion." Rev. Stat. § 1010, 28 U.S.C. § 878.
[13] See the authorities cited in note 10; see also note 11.
[14] "Interest shall be allowed on all judgments in civil causes, recovered in a district court, and may be levied . . ."; "it shall be calculated. . . ." (Emphasis added.) See note 3.
[15] Cf. note 4. The matter is somewhat complicated by the anomaly which would result from a decision that, while § 878 provides for allowance of interest as damages for delay when a decision is affirmed, neither that section nor § 811 explicitly provides any such indemnity when a judgment for the defendant is reversed with directions to enter judgment for the plaintiff; and by the considerations, obviously relevant on the face of § 811, see note 3, relative to securing uniformity in the allowance of interest as between the federal courts and courts of the state in which the federal court sits. Cf Massachusetts Benefit Assn. v. Miles, 137 U.S. 689; cf. also Erie R. Co. v. Tompkins, 304 U.S. 64.
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467 P.2d 981 (1970)
24 Utah 2d 182
J. Wendell MARRIOT, Administrator of the Estate of Russell L. Marriot, Deceased, Plaintiff and Appellant,
v.
PACIFIC NATIONAL LIFE ASSURANCE COMPANY et al., Defendants and Respondents.
No. 11879.
Supreme Court of Utah.
April 8, 1970.
Arden E. Coombs, Ogden, for appellant.
P. Knute Peterson, Salt Lake City, for respondents.
CROCKETT, Chief Justice.
Plaintiff as administrator for Russell L. Marriot sues to recover $2000 life and $2000 accidental death benefit insurance under a group insurance program furnished by Pacific National Life Assurance Company covering employees of Skyline Construction Co., Inc., for whom Mr. Marriot was working as an operating engineer when he was killed by contact with a high-voltage line on September 17, 1964. There is no question involved here as to who was at fault in the cause of his death, nor as to the right of his dependents to receive workmen's compensation benefits provided by law.[1] The sole issue is whether he had *982 qualified and was thus also covered under the company's group insurance program. The trial court granted defendant's motion for summary judgment. Plaintiff appeals. There being no disputed issues of fact, the question we confront is whether defendant was entitled to judgment as a matter of law.[2]
The eligibility of employees under the group insurance program was set forth in a "Certificate of Coverage" issued to the employees together with an affixed booklet explaining the conditions of coverage. These documents contained the contract of insurance which in pertinent parts provided:
The insurance benefits * * * are effective only if the person is eligible * * * [and] * * * becomes insured * * * in accordance with the provisions of the policies.
* * * * * *
* * * an employee must work at least 300 hours in a period of three or less consecutive calendar months. Each employee who meets this requirement * * * shall first become insured on the first of the second calendar month next following such period.
Mr. Marriot had completed the required 300 hours, having worked 198 hours in August and 104 hours in September prior to his death. Therefore if he had lived he would have been insured on the "first of the second calendar month" after completing those hours, which would have been November 1, 1964. The defendant's position, adopted by the trial court, is that because his death occurred on September 17, 1964, the period for his eligibility was never completed, and the insurance never went into effect.
In opposition to that position the plaintiff places reliance on another provision of the insurance plan which states:
* * * if you become disabled while actively at work between the date on which you complete the necessary hours for eligibility [300 hours] and the date your eligibility actually begins [November 1, 1964] your insurance will take effect as indicated above.
He makes these arguments: that everything required to be done by the decedent had been done (except only lapse of time); that if he had survived, even in a coma, until November 1, he would have been insured, without further payment of premiums, or anything else being done which would benefit the company. Wherefore, plaintiff avers, the delayed effective date was but a condition subsequent, not necessary to be fulfilled in order to make the insurance contract binding.[3] Correlated to and supportive of this, he further urges that the above quoted provision, that if the decedent became "disabled while actively at work" the insurance would nevertheless take effect, constituted a waiver of any further duties upon his part; and that, in any event, he was in fact literally "disabled" from further work when he was killed and therefore should be deemed covered.
In regard to the plaintiff's position there are some general observations with which we acknowledge agreement. While it is true that insurance is a matter of contract, it is to be recognized that the parties are not usually in an equal bargaining position, but rather are in a situation where one side with all of the expertise, can fashion the contract to its own interests. It often makes representations of insurance which it holds out to the customer, but which are explained in numerous paragraphs of fine print, many of which are found to be conditions and exceptions limiting the coverage. We entirely agree that courts should not give support to such methods and thus *983 enable insurance companies to hold out expectations of coverage with one hand and take them away with the other by setting forth a promise in one part of the contract and then taking it away somewhere else;[4] nor should they be permitted to avoid liability for promised coverage by relying upon technical requirements not material to the risk involved.[5]
Notwithstanding our accord with the propositions just stated, we do not see them as applying in the circumstances shown here to provide a basis for plaintiff's recovery. Bearing upon that problem it is also to be borne in mind that inasmuch as insurance coverage is based on contract, unless there is some good reason to the contrary,[6] we are obliged to assume that language included therein was put there for a purpose, and to give it effect where its meaning is clear and unambiguous.[7]
The insurance in question was not with an individual, but was group insurance for employees of a number of qualifying employers. It does not seem unreasonable that there be some rules as to eligibility so that coverage would be only upon the regular employees of the work force and eliminate those who may be merely temporary, or job-hopping; or even to prevent someone who may be otherwise uninsurable from deviously slipping into such an insurance program. It seems quite likely that this was a factor prompting the requirement of 300 hours' work and a waiting period until the first day of the second calendar month thereafter before the insurance went into effect. The provision does not impress us as being so inconsistent or contradictory to the representations of the insurance coverage as to render it unenforceable.
We are appreciative of the ingenuity of plaintiff's argument that when decedent was killed he was in one sense "disabled" in that he was "not able" to continue work, and thus the insurance should become effective at the end of the waiting period. However, in insurance, as in other contracts, it is proper to look to the ordinary usage and connotations of words to determine the meaning intended. The apparent purpose of the provision relied upon by the plaintiff is to assure the employee who qualifies by completing 300 hours of work that even if he becomes disabled and cannot continue working during the waiting period, his insurance will nevertheless become effective, so he will not be compelled to commence the qualification process over again. We think that in the frame of reference in which the term "disabled" is thus used it means something quite different from being "killed" and thus having one's life terminated entirely;[8] and that to accept plaintiff's argument that the term "disabled" should include one who is killed, would require a hypertechnical distortion of language not in accordance with the meaning intended in the insurance contract. (All emphasis added.)
The judgment is affirmed. Costs to defendant (respondent).
CALLISTER, TUCKETT, HENRIOD, and ELLETT, JJ., concur.
NOTES
[1] See Sec. 35-1-45, U.C.A. 1953: "Every employee * * * and the dependents of every such employee who is killed, by accident arising out of or in the course of his employment, * * * shall be entitled to receive, * * * compensation * * * as is herein provided." And see Sec. 35-1-68, U.C.A. 1953, which sets out the formula to determine the amount to be paid to dependents.
[2] See Auto Lease Co. v. Central Mutual Ins. Co., 7 Utah 2d 336, 325 P.2d 264.
[3] That there could be no true "condition subsequent" here see 17A C.J.S. Contracts § 339, p. 323; 17 Am.Jur.2d 756.
[4] See Seal v. Tayco, Inc., 16 Utah 2d 323, 400 P.2d 503; and see also Christensen v. Lelis Automatic Transmission Service, Inc., Utah, 467 P.2d 605.
[5] See Parker v. California State Life Ins. Co., 85 Utah 595, 40 P.2d 175, wherein this court stated: "When the insured in this case had fully complied with every requirement made by the defendant as a condition of reinstatement, leaving nothing but the formal approval of the company, the mere fact that he died from causes that in no way affected his insurability did not affect his right to have the company approve the application to reinstate." See also Palmer, et al. v. Broadbent, et al., 123 Utah 580, 260 P.2d 581.
[6] E.g., such as considerations of public policy, illegality, or unconscionability; and see footnotes 3 and 4 above.
[7] Jones v. New York Life Ins. Co., 69 Utah 172, 253 P. 200.
[8] See Paul v. Fidelity and Casualty Co. of New York, Mo. App., 34 S.W.2d 978, and cases cited therein. See also Aleksich v. Mutual Benefit Health & Accident Ass'n, 118 Mont. 223, 164 P.2d 372.
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705 N.W.2d 124 (2005)
474 Mich. 895-911
PEOPLE
v.
KURILIK.
No. 128526.
Supreme Court of Michigan.
October 31, 2005.
Leave to Appeal Denied.
SC: 128526, COA: 257253.
On order of the Court, the application for leave to appeal the April 7, 2005 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
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984 So.2d 520 (2008)
SPINOZA
v.
RIVER COUNTRY ESTATES HOMEOWNERS ASS'N.
No. SC07-426.
Supreme Court of Florida.
May 20, 2008.
Decision without published opinion. App.dismissed.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5078
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN THOMAS MCNEILL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.
(CR-03-483-L)
Submitted: January 12, 2006 Decided: March 31, 2006
Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Harvey Greenberg, Towson, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Bonnie S. Greenberg, Assistant
United States Attorney, Stephen Ruckman, Law Clerk, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kevin McNeill (McNeill) appeals his sentence following his
guilty plea to one count of armed bank robbery and aiding and
abetting the same, 18 U.S.C. §§ 2, 2113(a), (d), (f). We affirm.
McNeill pled guilty, pursuant to a plea agreement (the Plea
Agreement), during the time intervening between the Supreme Court’s
issuance of Blakely v. Washington, 542 U.S. 296 (2004), and United
States v. Booker, 543 U.S. 220 (2005). With one exception, the
Plea Agreement provided that McNeill waived his rights to challenge
his conviction and/or sentence on appeal. The sole exception is
that McNeill did not waive his right to make an appellate challenge
to his sentence based upon the ground that the United States
Sentencing Guidelines (USSG or the Guidelines) were
unconstitutional.
At sentencing, also during the time intervening between the
issuance of Blakely and Booker, the district court determined that
McNeill qualified to be sentenced as a career offender under USSG
§ 4B1.1,1 resulting in a total offense level of 31 (offense level
1
In relevant part, USSG § 4B1.1 provides:
(a) A defendant is a career offender if (1) the
defendant was at least eighteen years old at the
time . . . [of] the instant offense of conviction;
(2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at
least two prior felony convictions of either a
crime of violence or a controlled substance
offense.
- 2 -
34 minus three levels for acceptance of responsibility, see USSG §
3E1.1) and a criminal history category of VI.2 This combination
resulted in a sentencing range of 188 to 235 months’ imprisonment.
The district court sentenced McNeill to 188 months’ imprisonment.
In the event the Supreme Court struck down the career offender
Guideline as unconstitutional, the district court imposed an
alternative sentence of 130 months’ imprisonment, which represented
the low-end of the applicable sentencing range if McNeill had not
been sentenced as a career offender under USSG § 4B1.1. With
respect to this alternative sentence, the district court expressly
declared: “[T]he alternative sentence is stated under the
assumption that the career offender sentence goes by the wayside in
a retroactive way.” (J.A. 121).
On appeal, McNeill first challenges as unenforceable the
appellate waiver provisions of the Plea Agreement to the extent
such provisions bar him from challenging his sentence on
nonconstitutional grounds. According to McNeill, the government’s
sole discretion under USSG § 3E1.1(b) to move for an additional
(b) . . . A career offender’s criminal history category
in every case under this subsection shall be
Category VI.
USSG § 4B1.1.
2
Indeed, the Plea Agreement expressly provided: “The parties
agree that your client is a career offender, and therefore his
offense level is 34, Criminal History Category VI, pursuant to
U.S.S.G. § 4B1.1.” (J.A. 62).
- 3 -
one-level reduction in his offense level, if he assisted
authorities in the investigation or prosecution of his own
misconduct by timely notifying authorities of his intention to
enter a plea of guilty, caused him to involuntarily agree to the
appellate waiver provisions. See United States v. Johnson, 410
F.3d 137, 151 (4th Cir.) (“A waiver has no binding effect if the
defendant did not enter into it knowingly and voluntarily
. . . .”), cert. denied, 126 S. Ct. 461 (2005). We have thoroughly
reviewed the record, including the transcript of McNeill’s plea
colloquy, and find his express agreement to all provisions of the
Plea Agreement to be knowing and voluntary. Accordingly, we hold
that, with the exception of challenging his sentence on the ground
that the Guidelines are unconstitutional, McNeill is barred from
challenging his sentence on appeal.
The only appellate challenge to his sentence that McNeill has
not waived is his argument that his 188-month sentence should be
vacated and his case remanded for resentencing to the 130-month
alternative sentence because, in sentencing him under the career
offender Guideline, the district court treated the Guidelines as
mandatory in violation of the Sixth Amendment. McNeill’s argument
is without merit.
A district court may enhance a sentence based on the “fact of
a prior conviction,” United States v. Thompson, 421 F.3d 278, 282
(4th Cir.), petition for cert. filed, __U.S.L.W.__ (U.S. Oct. 25,
- 4 -
2005) (No. 05-7266), regardless of whether it was admitted to by
the defendant or found by a jury, so long as the facts necessary to
support the enhancement “inhere in the fact of conviction” rather
than being “extraneous to it,” id. at 283. Facts necessary to
support a sentencing enhancement inhere in the fact of conviction
rather than being extraneous to it so long as they come from “the
charging document, the terms of a plea agreement, the plea
colloquy, the statutory definition, or any explicit finding of the
trial judge to which the defendant assented to determine a disputed
fact about a prior conviction.” United States v. Collins, 412 F.3d
515, 521 (4th Cir. 2005).
Here, McNeill does not dispute that he qualified as a career
offender under USSG § 4B1.1 without violating the Sixth Amendment’s
jury-trial guarantee. Indeed, McNeill expressly states in his
appellate brief that he does not seek vacature of his sentence on
the ground that the indictment failed to charge the elements of
being a career offender under USSG § 4B1.1 or on the ground that a
jury did not find such elements beyond a reasonable doubt. Rather,
on appeal, he seeks resentencing on the sole ground that the
Guidelines are no longer mandatory.
McNeill is entitled to no appellate relief because the
district court’s treatment of the Guidelines as mandatory at
McNeill’s sentencing “is non-constitutional [error],” Collins, 412
F.3d at 524, and McNeill effectively waived his rights to mount an
- 5 -
appellate challenge to his sentence based upon non-constitutional
error.
For the reasons stated herein, we affirm McNeill’s sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 6 -
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61 F.3d 907
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Jerome WEATHERS, Petitioner-Appellant,v.Daniel R. McBRIDE, Respondent-Appellee.
No. 94-3176.
United States Court of Appeals, Seventh Circuit.
Submitted June 29, 1995.*Decided July 26, 1995.
Before CUMMINGS, COFFEY, and ROVNER, Circuit Judges.
ORDER
1
Jerome Weathers appeals from the dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 for failure to exhaust his state court remedies. He asks this court to disregard this failure and to grant him relief. On appeal, he claims that his guilty plea violated the Double Jeopardy Clause, due to the use of a plea agreement with the same terms as one used in a prior vacated plea proceeding. He also claims on appeal that his guilty plea violated his right to due process under Boykin v. Alabama, 395 U.S. 238, 243 (1969), because the state court failed to inform him of the constitutional rights he would be waiving by pleading guilty. During the pendency of this appeal, Weathers has appealed the denial of a post-conviction motion that included these claims to the Indiana Supreme Court. Although he may or may not have failed to fairly present some of his claims to Indiana's higher courts, any further attempt to seek post-conviction relief in the state courts for such claims would be futile. Wallace v. Duckworth, 778 F.2d 1215, 1219, 1225 (7th Cir.1985). Thus, the exhaustion requirement would no longer pose an impediment to the review of his petition. Since the record before this court is not sufficient to address potential procedural default issues, we vacate the district court's order and remand for further proceedings.
2
Weathers was charged with a variety of crimes in three indictments. On May 31, 1983, pursuant to a single plea agreement, Weathers pleaded guilty to three charges: robbery, delivery of a controlled substance and burglary. He received concurrent sentences of thirty years for robbery, ten years for delivery of a controlled substance, and five years for burglary. He later sought post-conviction relief; his first post-conviction motion itself is not in the record before us. On December 10, 1985, a state trial court granted Weathers' first motion for post-conviction relief on the grounds that the sentencing court had misinformed Weathers as to the minimum sentence for the offense of delivering a controlled substance and that it had failed to inform him of "a possible increased sentence by reason of the fact of a prior conviction or convictions...." (R. 3 at Ex. 8); see Ind.Code Sec. 35-35-1-2(3). The court set aside his three guilty pleas and ordered the Superintendent of the Indiana State Prison to deliver Weathers over to the custody of the Sheriff of LaPorte County. On June 23, 1986, Weathers pleaded guilty again and was sentenced to concurrent terms of thirty years for robbery, ten years for delivery of a controlled substance, and five years for burglary. The court also credited him with 1,355 days as time served as to each sentence.
3
On August 12, 1992, Weathers filed another motion for post-conviction relief challenging his second entry of guilty pleas on the grounds that the sentencing court failed to advise him of the rights that he would be waiving, that the court failed to inform him of the maximum and minimum sentences and the possibility of consecutive sentences, and that the state had failed to provide a new written plea agreement. At a hearing on October 23, 1992, the post-conviction court heard oral arguments concerning the sentencing court's alleged failure to inform Weathers of the implications of his plea. The court also permitted Weathers to amend his motion and join a Double Jeopardy claim therein. After allowing the amendment, the court denied the motion for post-conviction relief. The court did not address each claim individually; it generally held that there was no evidence to support the motion and stated that based on Weathers' presentation, it could not grant the motion. The court also concurred with the State's observation that Indiana law concerning the effect of a failure to inform a defendant of potential sentencing implications had changed since Weathers' first petition. See White v. Indiana, 497 N.E.2d 893, 906 (Ind.1986) (holding that technical failure to inform defendant of minimum sentence in violation of Ind.Code Sec. 35-35-1-2(a) was not reversible error).
4
After receiving judgment against him in this post-conviction action, Weathers then filed another motion for relief, which the record before us does not contain.1 It appears to have been a hybrid motion for some type of post-conviction relief and motion to modify his sentence. In documents he filed in this modification action, which he included with his habeas corpus petition, he refers to it as a request for a "reduction of sentence" and as a pro se petition for post-conviction relief. The state trial court denied this motion on the merits as a motion to modify Weathers' sentence, and he has not appealed from that judgment. The existence of this motion does not affect the issue of exhaustion. Any attempt to seek further relief on any claims that he may have attempted to raise in both this motion and his 1992 motion for post-conviction relief would be futile. See Wallace, 778 F.2d at 1225.
5
The federal district court received Weathers' petition for a writ of habeas corpus on September 13, 1993, and it allowed the petition to be filed on October 18, 1993, after Weathers paid the filing fee. On November 22, 1993, Weathers filed a belated notice of appeal from his 1992 post-conviction motion in state court. The district court dismissed Weathers' habeas corpus petition for failure to exhaust his remedies in order to allow Weathers to pursue this appeal.
6
The State has raised a jurisdictional issue with respect to the convictions for delivery of a controlled substance and robbery. Without providing any formal evidence of discharge, the State contends that Weathers had completed these two sentences before he filed his petition in the district court.2 Thus the State argues that he was not "in custody" with respect to these two convictions and that the District Court lacked jurisdiction over them. "To petition a federal court for habeas corpus relief from a state court conviction, the applicant must be 'in custody in violation of the Constitution or laws or treaties of the United States.' " Garlotte v. Fordice, 115 S.Ct. 1948, 1949 (1995) (emphasis added). A district court does not have subject-matter jurisdiction to review expired convictions solely on the grounds that the petitioner had once been in custody because of them.3 See Garlotte, 115 S.Ct. at 1951. However, even if prior convictions do not fulfill the "in custody" requirement, a court does have jurisdiction to the extent of determining whether alleged invalidity of the prior convictions may affect the constitutionality of the conviction from which the current custody derives. See Tredway v. Farley, 35 F.3d 288, 292 (7th Cir.1994), cert. denied, 115 S.Ct. 941 (1995).
7
"That a person happens to be in custody is of course not a sufficient reason to rummage through old judgments in search of ones that may be invalid." Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir.1990), cert. denied, 498 U.S. 1040 (1991). Before the court may grant habeas relief due to the invalidity of a prior conviction, the prisoner must prove that "there was a 'positive and demonstrable nexus between the current custody and the prior conviction,' " Lowery v. Young, 887 F.2d 1309, 1311 (7th Cir.1989), such that the prior judgment caused the augmentation of the current one. Crank, 905 F.2d at 1091. The district court may determine whether a nexus between the convictions exists before considering the merits of claims concerning the prior conviction. "Prudence counsels answering the causation question first." Id. In addition, a federal court will inquire into the merits of the constitutionality of a prior conviction that was used to enhance a present state sentence only if the petitioner has not been afforded a full and fair opportunity to contest the prior conviction. Smith v. Farley, 25 F.3d 1363, 1367 n. 8, 1370 (7th Cir.1994), cert. denied, 115 S.Ct. 908 (1995). The district court may address this issue further on remand.
8
"[E]xhaustion of state remedies is determined at the time that the petition for habeas corpus is filed." Verdin v. O'Leary, 972 F.2d 1467, 1483 (7th Cir.1992). It appears from materials appended to Weathers' appellate briefs that the district court correctly found that Weathers was entitled to pursue his belated appeal;4 the Indiana Court of Appeals agreed to allow the appeal, but denied it on the merits. On February 9, 1995, three days after the State filed its Appellee's Brief, the Indiana Supreme Court denied Weathers' petition for transfer. As a result, as we have already noted, the exhaustion requirement would no longer pose an impediment to the review of his petition.
9
The State, which filed its appellate brief under the assumption that exhaustion remained incomplete, argues that Weathers has procedurally defaulted on his Double Jeopardy claim. However, it also generally contends that the record is not sufficient to permit an informed review of the procedural posture of Weathers' claims. Because the record before us is incomplete, arguments concerning the fair presentment of Weathers' claims may best be addressed in the district court after the parties have had an opportunity to supplement the record. Therefore, we vacate the district court's judgment and remand for further proceedings.5 See Sharpe v. Buchanan, 317 U.S. 238, 238-39 (1942) (per curiam) (vacating court of appeals decision affirming dismissal for lack of exhaustion and remanding for further proceedings because petitioner had successfully exhausted his claims while awaiting review by the Supreme Court).
10
VACATED AND REMANDED.
*
After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Cir.R. 34(f). No such statement having been filed, the appeal is submitted on the briefs and record
1
On appeal, Weathers insists that this motion to modify his sentence involves issues different from those that he raised in his habeas petition
2
By our calculation, even assuming that Weathers received no good time credit of any sort, the ten year sentence for delivery of a controlled substance would have lasted 2,297 days (3652 days - 1355 days for time served). Weathers' petition for habeas corpus, which was dated August 19, 1993, was signed 2,614 days after he was sentenced or 317 days after the sentence for delivery of a controlled substance would have been completed. By the time he was allowed to file the petition, more than a year had passed since that sentence would have finished. The five year sentence for burglary, which was also reduced for time served, similarly would have ended more than six years before he was allowed to file the petition
3
The Supreme Court has recently clarified an exception to this rule. If two sentences run consecutively, a prisoner is "in custody" for both. Id. at 1952; Peyton v. Rowe, 391 U.S. 54, 64 (1968). Here, the sentences ran concurrently
4
Neither party contests the court's decision to act sua sponte on the issue of exhaustion even though the State alleged that exhaustion was complete. Since it has not been raised before us and given our disposition in this case, we decline to address the issue
5
We believe that we have some discretion as to how to address exhaustion of state remedies during the pendency of an appeal. The other circuits have indicated a variety of solutions for this problem. Cf. Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir.1988) (holding that "[a]n appellate court ... may give relief if state remedies are exhausted by the time it acts...."); Osborn v. Shillinger, 861 F.2d 612, 616 (10th Cir.1988) (holding that since exhaustion had been achieved, court of appeals may give relief, and proceeding to consider merits of case), disapproved on other grounds, Shafer v. Stratton, 906 F.2d 506, 509 (10th Cir.1990); Domaingue v. Butterworth, 641 F.2d 8, 14 n. 7 (1st Cir.1981) (dictum) (saying that vacating judgment as in Sharpe v. Buchanan, 317 U.S. 238, 238-39 (1942) (per curiam), is not mandatory and that court would require filing of new petition if state remedies become exhausted); Bufalino v. Reno, 613 F.2d 568, 571 (5th Cir.1980) (dictum) (saying that federal court can give relief despite failure to exhaust if the remedies have been exhausted by time that federal court acts); Salama v. Virginia, 605 F.2d 1329, 1330 & n. 1 (4th Cir.1979) (affirming dismissal despite exhaustion during pendency of appeal because court of appeals refused to take judicial notice of state records entered on appeal, and distinguishing Sharpe on grounds that due to fair presentment issues, the district court could better determine whether exhaustion occurred); Thompson v. White, 591 F.2d 441, 443 (8th Cir.1979) (per curiam) (vacating district court order with respect to exhausted issues). But cf. Carr v. Simpson, 412 F.2d 838, 839 (5th Cir.1969) (per curiam) (holding that Sharpe dictates vacating judgment and remanding case to district court); Davis v. Jackson, 246 F.2d 268, 269 (2d Cir.1957) (per curiam) (holding, with citation to Sharpe, that court must act on situation as it now exists; remanding case to district court)
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82 Ill. App.3d 884 (1980)
403 N.E.2d 495
ROBERT FREEMAN, Plaintiff-Appellee,
v.
WHITE WAY SIGN AND MAINTENANCE COMPANY, Defendant and Third-Party Plaintiff-Appellant. (THE BUNKER RAMO COMPANY, Third-Party Defendant-Appellee.)
No. 78-1679.
Illinois Appellate Court First District (5th Division).
Opinion filed February 22, 1980.
Rehearing denied April 11, 1980.
*885 Fredrick J. Fraterrigo and James F. Best, both of Kralovec, Sweeney, Marquard & Doyle, of Chicago, for appellant.
Michael H. Postilion, of Chicago, for appellee Robert Freeman.
Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas R. Nelson, and Charles B. Lewis, of counsel), for appellee The Bunker Ramo Company.
Judgments reversed.
Mr. JUSTICE MEJDA delivered the opinion of the court:
Plaintiff brought this action to recover for personal injuries he *886 suffered when he fell from a theater marquee ladder. A directed verdict was entered in favor of the third-party defendant. A jury rendered a verdict for plaintiff against defendant, White Way Sign and Maintenance Company (White Way), in the amount of $125,000, and judgment was entered on that verdict. On appeal, White Way contends that: (1) the trial court erroneously permitted plaintiff to reinstate a count previously dismissed; (2) it is not liable as a matter of law, or if liable, it should be indemnified by the third-party defendant; and (3) certain errors committed at trial entitle it to a new trial. Because of the disposition of this appeal, it is necessary to address only the first two of White Way's contentions.
This case involves the issue of a successor corporation's tort liability for injuries resulting from a predecessor's product. A review of the pleadings and evidence presented at trial reveals the following facts. In 1916, Thomas Flannery, Sr., started a sign business called White Way Service Company. The name was later changed to White Way Electric Sign and Maintenance Company, and was owned and operated by the Flannery family. In 1966, Amphenol Corporation bought the stock of White Way Electric Sign and Maintenance Company from the Flannerys. James Flannery, the president of White Way Electric Sign and Maintenance Company, testified at trial that the corporation was dissolved but was unsure of the date. Other evidence indicated that the corporation was still registered with the Secretary of State in 1969. Testimony of the secretary-treasurer of the corporation indicated that the previous corporation continued merely as a name-holding corporation to prevent an outside party from using the name and that it held no assets. Amphenol operated the sign business as one of its divisions under the name "White Way Sign, a division of Amphenol Corporation" (White Way-Amphenol). In 1968 Amphenol Corporation merged with the Bunker Ramo Company and the sign company became "White Way Sign Division of Bunker Ramo Company."
From 1966 to 1970, James Flannery was vice-president of the White Way Sign division of Amphenol and then Bunker Ramo, but was not a corporate officer, director or shareholder in either parent corporation. In 1968 White Way Sign was a small part of Bunker Ramo, providing only about 2% of its total revenues.
In 1970 the instant defendant, White Way Sign and Maintenance Division, came into legal existence. On April 20 of that year a certificate of incorporation was issued for J.E. Enterprises, Inc., which was owned by the Flannerys. Pursuant to an agreement dated June 1, 1970, J.F. Enterprises, Inc., purchased certain assets of White Way Sign division of Bunker Ramo for $678,000. Included in the assets were the stock of the name-holding corporation, inventories, plant equipment and certain *887 maintenance contracts. Bunker Ramo retained all the land, buildings, certain lease contracts and other items amounting to about 90% of the division's assets. The agreement expressly provided: "* * * Seller shall be responsible for all liabilities of the Division arising out of activities of the Division prior to the effective date [January 1, 1970]; but all liabilities (except liabilities related to the properties, interests and rights retained by Seller) of the Division arising out of activities of the Division after the Effective Date shall be the obligation of the Buyer." J.F. Enterprises' articles of incorporation were amended on June 2, 1970, to change the corporate name to White Way Sign and Maintenance Corporation. The name-holding corporation was liquidated on the same day.
After this agreement Bunker Ramo continued to receive income from its interest in the division. In 1975 White Way Sign and Maintenance Company purchased the remaining assets of the division from Bunker Ramo. Bunker Ramo continued its existence after this sale.
The theater marquee in question was installed by White Way-Amphenol in 1967. When installed, the marquee had no access ladder and a portable extension ladder was used to change the letters on the marquee. Because of the difficulties experienced with this arrangement, White Way-Amphenol proposed to install a permanent steel ladder that would extend from ground level to the catwalk surrounding the marquee. However, because of a change of plans, a standard aluminum ladder was purchased from an unknown source and ultimately affixed to the marquee by White Way-Amphenol in 1967 by means of steel bolts.
Plaintiff's accident occurred on September 9, 1971. At that time he was a 17-year-old high school senior who had worked for the theater for a period of 7 or 8 months. He performed odd jobs for the theater, and on the day of the accident he was asked to change the letters on the marquee, a task he had never done previously. Plaintiff ascended the ladder carrying a box containing the letters. As he climbed upward there were times when his hands were not in contact with the ladder. When he was a couple of feet from the top, he remembered missing a rung with his hand. He fell and sustained the injuries for which he brought this action.
Plaintiff originally filed a complaint against White Way Electric Sign and Maintenance Company and White Way Sign and Maintenance Company based upon alleged violations of the Structural Work Act. (Ill. Rev. Stat. 1977, ch. 48, pars. 60 through 69.) The complaint was amended to include a strict liability count and a negligence count. White Way filed a second amended third-party complaint based on products liability against Bunker Ramo seeking indemnity for any possible liability of White Way. White Way alleged that Bunker Ramo was the actual manufacturer of the ladder and that White Way was its corporate successor. Bunker Ramo sought to have the third-party complaint for *888 indemnity on products liability dismissed, contending that the sale of the marquee was an isolated event and that since it was permanently attached to real estate it could not be the subject of a products liability suit.
On September 14, 1977, Bunker Ramo renewed its motions to dismiss White Way's claim and White Way moved to dismiss plaintiff's products liability count from his amended complaint. Judge DeBow, the trial judge assigned to the case, granted both motions on that day, and the orders included findings that there was "no just cause to delay enforcement or appeal" of the orders.
The case proceeded to trial, and during trial plaintiff filed his second amended complaint based solely on the Structural Work Act and negligence counts. The jury could not reach a verdict and a mistrial was declared. On September 23, 1977, Judge DeBow ordered that the case be returned to the presiding judge for reassignment.
White Way filed a timely post-trial motion concerning the Structural Work Act and negligence aspects of the case, but it did not relate to the dismissed products liability counts. During the course of argument on the motion, White Way's attorney referred to evidence discovered at trial which showed that the ladder was not permanently affixed to the marquee as all parties had earlier believed and stated his belief that this misconception was the basis for Judge DeBow's dismissal of the products liability counts. Judge DeBow concluded his ruling on the motion by saying, "Take you all back where you started." A written order on the post-trial motion was entered on October 13, 1977, and pertained only to matters raised in the motion and did not vacate the orders of September 14 which dismissed the products liability counts.
On April 13, 1978, the case was assigned to Judge Geroulis for trial. The case proceeded to a second trial on April 14, 1978. On that date plaintiff sought to file a third amended complaint which would reinstate the products liability count but omit the negligence count. White Way objected contending that because the final and appealable order of September 14 which dismissed the products liability claim had not been appealed, the count could not be reinstated. Judge Geroulis granted plaintiff leave to file the complaint and allowed White Way to file a fourth amended third-party complaint which included an indemnity count for products liability against Bunker Ramo. The court also granted summary judgment for White Way on the Structural Work Act count. The case proceeded to trial based solely on the products liability counts of plaintiff's complaint and the third-party complaint.
At the close of the evidence, the court denied White Way's motion for a directed verdict but directed a verdict for Bunker Ramo. The jury found for plaintiff in the amount of $125,000 and judgment was entered on the verdict.
*889 On September 11, 1978, White Way presented a motion to Judge DeBow seeking certification and filing for the report of proceedings that occurred on October 11, 1977, when White Way's post-trial motion for the first trial was presented. Plaintiff's counsel stated his belief that the October 13, 1977, order entered on White Way's post-trial motion was incomplete and did not reflect the intention of the court's oral ruling on October 11. The hearing was continued until the following day when Judge DeBow stated:
"It was my intention it was my understanding that we put all the parties this is not the first case I had like this. I put all the parties back in the same position you were when you came to me, when you were originally assigned to me, and then leave up to the next judge to rule on any motions you want to bring up.
That I did not want to saddle another judge with any ruling that I made. Since you started all over again, you have an opportunity to present to that judge all these questions. Let him decide since he's going to hear it.
He would not be in the position to have to change any decision I made because I put everything back where I started, starting all over. Present it to him, and get his point of view, and decision, and what he feels the rules and law is that affects his case.
That is what I intended to do. It's not clearly it says here, I want to take you all back where you started. The idea was to put you back in the same position you were when the case was first assigned to me."
Pursuant to plaintiff's request, Judge DeBow entered a nunc pro tunc order on September 13, 1978, which vacated as of October 11, 1977, the September 14, 1977 orders which dismissed the products liability counts. The nunc pro tunc order returned all pleadings and parties to the status they held when the case was originally assigned to him.
OPINION
1 The first question to be resolved is whether plaintiff's products liability count was properly reinstated before the second trial. White Way contends that the September 14, 1977, order dismissing plaintiff's products liability count was final and appealable since it disposed of a distant cause of action (Rone v. Boncar Construction Co. (1976), 45 Ill. App.3d 1, 358 N.E.2d 1315; Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App.3d 625, 295 N.E.2d 41) and included the requisite finding under Supreme Court Rule 304 (Ill. Rev. Stat. 1977, ch. 110A, par. 304). It argues that because plaintiff failed to appeal the order or file a section 72 petition (Ill. Rev. Stat. 1977, ch. 110, par. 72) the trial court lost jurisdiction of the case and could not reinstate the count. (See Fox v. Department of *890 Revenue (1966), 34 Ill.2d 358, 215 N.E.2d 271; Sabath v. Mansfield (1978), 60 Ill. App.3d 1008, 377 N.E.2d 161.) Because the September 14, 1977, order was final and appealable, and plaintiff failed to challenge that order, we find that the count was not properly reinstated. Therefore, the judgment which was based on the count must be reversed.
Supreme Court Rule 304 (Ill. Rev. Stat. 1977, ch. 110A, par. 304) governs appeals from orders which do not dispose of an entire proceeding. That rule provides in pertinent part:
"(a) * * * If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. * * * In the absence of such a finding, any [such] judgment * * * is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties."
2 An order is final if it either terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate branch thereof. (South Chicago Community Hospital v. Industrial Com. (1969), 44 Ill.2d 119, 254 N.E.2d 448; Cohen v. Sterling Nursing Home, Inc. (1978), 57 Ill. App.3d 162, 372 N.E.2d 934.) Although the statement of a single claim in several ways, by multiple counts, does not warrant a separate appeal upon dismissal of one of the counts (Cunningham v. Brown (1961), 22 Ill.2d 23, 174 N.E.2d 153; Veach v. Great Atlantic & Pacific Tea Co. (1959), 22 Ill. App.2d 179, 159 N.E.2d 833), where the bases of recovery for separate counts are different, dismissal of a count is appealable because it disposes of a distinct cause of action. Cunningham; Rone v. Boncar Construction Co. (1976), 45 Ill. App.3d 1, 358 N.E.2d 1315.
This action involves a claim for injuries against one defendant brought in three separate counts based upon: (1) Structural Work Act; (2) negligence; and (3) strict products liability. Since only the products liability count was dismissed by the September 14 order, the inquiry is whether that count stated a cause of action distinct from the other two counts. The dismissed count quite clearly constituted a cause of action distinct from the statutory basis for recovery provided by the Structural Work Act. Cf. Rone v. Boncar Construction Co.; Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App.3d 625, 295 N.E.2d 41 (Structural Work Act and common law negligence constitute distinct causes of action).
The products liability count also constitutes a cause of action distinct from the negligence count. A complaint for negligence must set out the existence of a duty to the injured party, a breach of that duty and an *891 injury proximately resulting from that breach. (Cunis v. Brennan (1974), 56 Ill.2d 372, 308 N.E.2d 617.) A plaintiff's contributory negligence will bar recovery in a negligence action in Illinois. Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305; Swenson v. City of Rockford (1956), 9 Ill.2d 122, 136 N.E.2d 777.
On the other hand:
"The elements of a cause of action in strict products liability, of course, differ markedly from their counterparts in negligence. To recover in strict liability, the injury must result from a condition of the product, the condition must be unreasonably dangerous and the condition must have existed at the time the product left the manufacturer's control." (Hunt v. Blasius (1978), 74 Ill.2d 203, 210, 384 N.E.2d 368.)
A defendant's negligence need not be proved in a strict products liability suit. (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182; Fanning v. LeMay (1967), 38 Ill.2d 209, 230 N.E.2d 182.) In addition, contributory negligence is not a bar to recovery in a strict products liability action; rather, the plaintiff's conduct must amount to "assumption of the risk" to bar recovery. Williams v. Brown Manufacturing Co.
3, 4 In view of the different elements necessary to establish a proper claim in a negligence action as opposed to a strict products liability action, and the differing standards of plaintiff's conduct which will bar recovery, we conclude that the two claims constitute distinct causes of action. Since the September 14 order dismissed a distinct cause of action and contained the requisite finding, it was a final and appealable order.
5 Plaintiff argues that White Way's counsel pointed out the erroneous basis for the dismissal, i.e., that the ladder was permanently affixed to the marquee and was not a product at all, and that Judge DeBow's statement "Take you all back where you started" indicated his intent to return all parties to their original positions, and implicitly to vacate the order of dismissal. However, plaintiff made no motion to vacate the order nor did he appeal it. White Way's post-trial motion did not include any request for relief from the order which dismissed its third-party count for indemnity based on the products liability count, nor was there any reference to the count in the post-trial order of October 13, 1977. Whatever may have been intended by that statement, it is clear that the written order entered on October 13, 1977, did not vacate the earlier order. Nor was the omission an inadvertent oversight, since the judge never orally vacated the order nor was he requested to by any post-trial motion. Since his failure to have the order vacated or to appeal bars plaintiff from pursuing the products liability count, the trial court improperly allowed its reinstatement before the second trial. Sabath v. Mansfield (1978), 60 Ill. App.3d 1008, 377 N.E.2d 161.
*892 Judge DeBow's nunc pro tunc order of September 13, 1978 (entered after the second trial), does not change this result. A nunc pro tunc order can be made at any time, even after the expiration of the term, to correct a final order or judgment to reflect what had been done, but not to alter the judgment actually rendered. (Dauderman v. Dauderman (1970), 130 Ill. App.2d 807, 263 N.E.2d 708; Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App.3d 1051, 399 N.E.2d 216.) A nunc pro tunc order may not be used to supply omitted judicial action, to correct judicial errors, or to cure a jurisdictional defect, and must be based on some note, memorandum, or a definite and certain record and may not be entered in reliance on the judge's memory alone. Kooyenga; Spears v. Spears (1977), 52 Ill. App.3d 695, 367 N.E.2d 1004.
6 Although Judge DeBow had a copy of the transcript of the October 11, 1977, proceedings before him at the entry of the nunc pro tunc order, there was nothing contained therein to indicate that an oral ruling had been made which vacated the order of dismissal. The statement "Take you all back where you started," is ambiguous at best as to what ruling was made. This phrase in and of itself does not establish that the judge thereby ruled or granted relief which had not been requested. The transcript does not establish a definite and certain record of any ruling to vacate the prior order of dismissal or the Rule 304 finding therein on which a nunc pro tunc order could be based. The judge's statement upon entry of the nunc pro tunc order that "This is what I intended to do. It's not clearly * * *. The idea was to put you back in the same position you were when the case was first assigned to me," demonstrates that omitted judicial action was being supplied solely in reliance on his memory. Accordingly, the nunc pro tunc order was improper and ineffective to establish what had purportedly been done. Therefore, since the products liability count was concluded by the dismissal order which was not appealed, the order at the second trial to reinstate the count and the judgment on that count cannot stand.
Moreover, even if the products liability count had been properly before the second trial court, White Way could not have been liable to plaintiff. In Illinois, a corporation which purchases the assets of another corporation is not generally liable for the debts and liabilities of the transferor in the absence of an agreement providing otherwise. (Johnson v. Marshall & Huschart Machinery Co. (1978), 66 Ill. App.3d 766, 384 N.E.2d 141; Hernandez v. Johnson Press Corp. (1979), 70 Ill. App.3d 664, 388 N.E.2d 778.) The exceptions to the general rule include: (1) where the transaction amounts to a consolidation or merger of the purchaser or seller corporation; (2) where the purchaser is merely a continuation of the seller; and (3) where the transaction is for the fraudulent purpose of escaping liability for the seller's obligations. Hernandez v. Johnson Press *893 Corp.; Domine v. Fulton Iron Works (1979), 76 Ill. App.3d 253, 395 N.E.2d 19.
7 The purchase agreement between Bunker Ramo and White Way specifically provided that Bunker Ramo would remain responsible for liabilities arising out of prior activities and negated any assumption of responsibility by White Way. Nor are any of the exceptions to the general rule applicable to the facts of this case.
The sale was not a consolidation or merger of Bunker Ramo and White Way as each continued their separate existence following the sale. Nor can it be said that a de facto merger occurred. The criteria for establishing a de facto merger as set forth in the Hernandez case are:
"(1) There is a continuation of the enterprise of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operations.
(2) There is a continuity of shareholders which results from the purchasing corporation paying for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller corporation so that they become a constituent part of the purchasing corporation.
(3) The seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible.
(4) The purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation." 70 Ill. App.3d 664, 667.
The facts in the instant case do not indicate a de facto merger occurred in 1970. First, it does not appear that there was a continuity of the management, directors or shareholders of the two corporations. Second, cash was exchanged for the purchase price instead of shares of stock in the new corporation substituted for that of the old corporation. Third, Bunker Ramo did not cease operations but continued on as a separate corporation. Fourth, although White Way did assume the service obligations of the prior corporation under its service contracts, this would only be consistent with the sale of an ongoing business.
White Way was not a mere continuation of Bunker Ramo since the shareholders, directors and managers of the two corporations were not the same. In addition, the transfer cannot be considered a fraudulent attempt to escape liability since adequate consideration was given before the accident occurred and therefore before any possible liability existed.
Finally, we do not agree with plaintiff that this is a proper case for the application of the "product-line theory" of liability set out in Ray v. Alad *894 Corp. (1977), 19 Cal.3d 22, 560 P.2d 3, 136 Cal. Rptr. 574. That approach has been rejected in four recent cases in this district. (Johnson; Domine; Hernandez; Barron v. Kane & Roach, Inc. (1979), 79 Ill. App.3d 44, 398 N.E.2d 244.) Illinois courts have not adopted the reasoning of Ray, and we decline to do so. Furthermore, we note that unlike the facts in Ray where the predecessor corporation had been dissolved, Bunker Ramo has continued its existence and was available for suit. The continued existence of the predecessor corporation was considered in the Domine case as making Ray inapplicable and as an additional reason for rejecting it. (76 Ill. App.3d 253, 257.) For the foregoing reasons, we find that even if the products liability count had been properly before the trial court, White Way could not be held liable for plaintiff's injuries. In view of this result, it is unnecessary to decide whether White Way is entitled to indemnity from the third-party defendant.
Accordingly, the order reinstating plaintiff's products liability count, the nunc pro tunc order, and the judgment rendered for plaintiff are reversed.
Orders and judgment reversed.
LORENZ and WILSON, JJ., concur.
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NUMBER 13-99-593-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
ROLAND FUENTES, Appellant,
v.
ELIZABETH MENDOZA FUENTES, Appellee.
___________________________________________________________________
On appeal from the 138th District Court
of Cameron County, Texas.
___________________________________________________________________
O P I N I O N
Before Justices Hinojosa, Chavez and Rodriguez
Opinion by Justice Chavez
On May 13, 1999 Elizabeth Mendoza Fuentes was granted a
divorce from appellant Roland Fuentes. In the same proceeding
appellant's parental rights to his two daughters were terminated and
appellant's parents' visitation rights (as grandparents) to his two
daughters were also terminated. Neither the grandparents nor their
attorney appeared at the trial, and they are not parties to this appeal.
Roland Fuentes is currently incarcerated for the offense of rape, and
was not present at the hearing because he was incarcerated for the
rape offense at that time. By three points of error in a pro se appeal
Appellant claims that he was not appointed an attorney ad litem and did
not receive proper notice of the May 13th hearing. We reverse the trial
court's decision regarding the termination of Rolando Fuentes's parental
rights, and remand this issue to the trial court for a new trial.
In his first point of error appellant argues that his due process
rights under the Texas and United States Constitutions were violated
when the trial court did not appoint an attorney ad litem to represent
him in a parent/child termination case. "In a suit in which termination
of the parent-child relationship is requested, the court shall appoint an
attorney ad litem to represent the interests of . . . an indigent parent of
the child who responds in opposition to the termination[.]" Tex. Fam.
Code Ann. § 107.013 (a)(1) (Vernon Supp. 2000). Appellant claims that
although he provided the court with proof of indigence and that he
responded in opposition to the termination, he was denied
representation.
On December 28, 1998, Elizabeth Mendoza Fuentes filed a petition
for divorce and the termination of appellant's parental rights. On
December 30, 1998, appellant was served. On January 11, 1999,
appellant filed an affidavit that explained that he was incarcerated, but
wished to attend the parental termination hearing. The rules of
appellate procedure instruct that:
If a contest is filed, the party who filed the affidavit of
indigence must prove the affidavit's allegations. If the
indigent party is incarcerated at the time the hearing on a
contest is held, the affidavit must be considered as evidence
and is sufficient to meet the indigent party's burden to
present evidence without the indigent party's attending the
hearing.
Tex. R. App. P. 20.1(g). Appellant's January 11th affidavit gave the trial
court notice of his indigence because it states that he is incarcerated.
Additionally, the trial court had constructive notice of appellant's
incarceration. In appellant's ex-wife's petition for divorce and for
termination of his parental rights, the grounds she pleaded included
appellant's imprisonment. On February 4, 1999, the trial judge signed
a temporary order granting appellant's ex-wife sole managing
conservatorship based on her motion for that purpose, also dated
January 11, 1999. The order states, "Respondent is currently
incarcerated for engaging in criminal conduct that results in his
imprisonment; therefore is unable to have access and/or possession of
the children." At trial on May 13, 1999, appellant's ex-wife stated that
he was incarcerated, and the court itself stated, "The order I'm
concerned with at this point -- and I can see why -- of course, nobody
has answered, except the father has answered, and he is denying
everything, and he is locked up in prison."
The trial court's constructive and actual notice of appellant's
incarceration was prima facie evidence of indigence. Therefore, the trial
court erred when it did not appoint appellant an attorney ad litem as
required by the Texas Family Code. Tex. Fam. Code Ann. § 107.013
(a)(1) (Vernon Supp. 2000). We need not look at the remaining
arguments. Tex. R. App. P. 47.1 (West 2000). The proper remedy for
the failure to appoint a guardian ad litem to a defendant who is
incarcerated is a new trial. Odoms v. Batts, 791 S.W.2d 677, 680 (Tex.
App.--San Antonio 1990, no writ). The trial court's parental termination
ruling is reversed and remanded for a new trial consistent with this
opinion.
MELCHOR CHAVEZ
Justice
Do not publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed this
the 29th day of June, 2000.
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IN THE
TENTH COURT OF APPEALS
No. 10-19-00085-CR
THOMAS HOLDER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law No. 1
McLennan County, Texas
Trial Court No. 2017-3455-CR1
MEMORANDUM OPINION
In one issue, appellant, Thomas James Holder, challenges the sufficiency of the
evidence supporting his conviction for theft of property valued at $100 or more but less
than $750. See TEX. PENAL CODE ANN. § 31.03(a), (e)(2) (West 2019). We affirm.
I. SUFFICIENCY OF THE EVIDENCE
In his sole issue on appeal, Holder contends that the evidence is insufficient to
support his conviction for theft of property valued at $100 or more but less than $750. We
disagree.
A. Standard of Review
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we
consider whether, after viewing all of the evidence in the light most
favorable to the verdict, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v.
State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires
the appellate court to defer “to the responsibility of the trier of fact fairly
to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319. We may not re-weigh the evidence or substitute our
judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007). The court conducting a sufficiency review must
not engage in a “divide and conquer” strategy but must consider the
cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although
juries may not speculate about the meaning of facts or evidence, juries
are permitted to draw any reasonable inferences from the facts so long
as each inference is supported by the evidence presented at trial. Cary
v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443
U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App.
2007). We presume that the factfinder resolved any conflicting
inferences from the evidence in favor of the verdict, and we defer to that
resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
This is because the jurors are the exclusive judges of the facts, the
credibility of the witnesses, and the weight to be given to the testimony.
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct
evidence and circumstantial evidence are equally probative, and
Holder v. State Page 2
circumstantial evidence alone may be sufficient to uphold a conviction
so long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
(Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient to
support a conviction by comparing it to “the elements of the offense as
defined by the hypothetically correct jury charge for the case.” Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury charge is one that “accurately sets out the law, is authorized
by the indictment, does not unnecessarily increase the State's burden of
proof or unnecessarily restrict the State's theories of liability, and
adequately describes the particular offense for which the defendant was
tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim.
App. 2013). The “law as authorized by the indictment” includes the
statutory elements of the offense and those elements as modified by the
indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
B. Discussion
Brianna Tullos testified that she met Holder at a mutual friend’s house the night
before the offense was committed in this case. Tullos invited Holder over to her
apartment the following evening. Tullos recounted that Holder arrived at her apartment
at around 7:30 p.m. that evening. While Tullos and Holder were “hanging out,” Tullos
fell asleep. Tullos noted that she fell asleep because of prescription medicine she had
taken. Nevertheless, at the time of the “date,” there was no one else inside Tullos’s
apartment.
Tullos recalled that she woke up at 9:30 p.m. that same evening to find that Holder
was no longer present in the apartment. Instinctively, Tullos checked her purse and
Holder v. State Page 3
noticed that she could not find, among other things, her keys and approximately $400 in
cash. Tullos noted that the cash was located inside a separate wallet inside her purse.
She later found her keys, but the cash was never recovered.
Tullos attempted to contact Holder by text messaging him and sending him a
Snapchat message. Despite responding to Tullos’s Snapchat and text messages the night
prior to the “date,” Holder stopped responding and blocked Tullos. However, Tullos
was able to see what Holder had posted on Snapchat. Tullos learned through Holder’s
Snapchat video post that “he was going to go out and party.” She found this “very odd”
because Holder told her during the “date” that “he had no money whatsoever, he was
broke.” Tullos denied giving Holder permission to take anything out of her purse or her
apartment, and she never heard from Holder again.
Viewing the evidence in the light most favorable to the verdict, the jury could have
rationally concluded that Holder unlawfully appropriated approximately $400 in cash
from Tullos’s purse with the intent to deprive Tullos of the property. See TEX. PENAL
CODE ANN. § 31.03(a), (e)(2); see also Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2781; Zuniga,
551 S.W.3d at 732-33. This is especially so considering Holder was the only person in the
apartment, besides Tullos, who had access to the purse at the time of the offense and
because Holder discontinued contact with Tullos after the theft and went partying
despite testimony that he had no money when he went to Tullos’s apartment. The jury
could have reasonably inferred, based on his presence at the apartment at the time of the
Holder v. State Page 4
offense, as well as his conduct after the theft, that Holder was the perpetrator of the theft.
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2781; Cary, 507 S.W.3d at 757; Hooper, 214 S.W.3d
at 16-17. Accordingly, we hold that the evidence is sufficient to support Holder’s
conviction in this case. See TEX. PENAL CODE ANN. § 31.03(a), (e)(2); see also Jackson, 443
U.S. at 318-19, 99 S. Ct. at 2781; Zuniga, 551 S.W.3d at 732-33.
Despite the foregoing, Holder argues on appeal that some mystery person could
have come into Tullos’s apartment and stolen the money while she was asleep. We are
not persuaded by this contention, as it is purely speculative and not supported by any
record evidence. Moreover, it is well-settled law that the State is not obligated to negate
every conceivable alternative to a defendant’s guilt. See Geesa v. State, 820 S.W.2d 154,
157-61 (Tex. Crim. App. 1991) (holding that it is not incumbent upon the State to exclude
“every reasonable hypothesis other than guilt” for the evidence to be considered
sufficient), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim.
App. 2000); see also Lopez v. State, 267 S.W.3d 85, 97-98 (Tex. App.—Corpus Christi 2008,
no pet.) (citing Harris v. State, 133 S.W.3d 760, 763-65 (Tex. App.—Texarkana 2004, pet.
ref’d); Richardson v. State, 973 S.W.2d 384, 387 (Tex. App.—Dallas 1998, no pet.) (“[T]he
mere existence of an alternative reasonable hypothesis does not render the
evidence . . . insufficient . . . . [E]ven when an appellant identifies an alternative
reasonable hypothesis raised by the evidence, the standard of review remains the
Holder v. State Page 5
same.”); Orona v. State, 836 S.W.2d 319, 322 (Tex. App.—Austin 1992, no pet.)). We
therefore overrule Holder’s sole issue on appeal.
II. CONCLUSION
We affirm the judgment of the trial court.
JOHN E. NEILL
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed January 8, 2020
Do not publish
[CR25]
Holder v. State Page 6
| {
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} |
NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0602n.06
Filed: July 14, 2005
No. 04-3806
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CAROL FINKES, )
)
Petitioner-Appellant )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
DEBORAH TIMMERMAN-COOPER, ) SOUTHERN DISTRICT OF OHIO
)
Respondents-Appellee )
)
)
BEFORE: MERRITT and ROGERS, Circuit Judges; and HOOD, District Judge*
MERRITT, Circuit Judge. The habeas petitioner, Carol Finkes, was convicted of
aggravated murder in Ohio in January 2001, and was sentenced to 20 years to life. She filed an
appeal to the Ohio Court of Appeals, which affirmed the judgment of the trial court. New lawyers
appeared for her in the Court of Appeals proceeding. The Ohio Supreme Court denied review.
Without filing for post-conviction review in the state courts, petitioner filed her federal habeas
corpus petition. It was denied in a magistrate’s 40-page report and recommendation, a
recommendation which District Judge Graham accepted. On appeal Finkes raises constitutional
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by
designation.
No. 04-3806
Finkes v. Timmerman-Cooper
issues of prosecutorial misconduct, trial error in the exclusion of evidence, and ineffective assistance
of counsel. We affirm.
I. Facts and Standard of Review
The basic theory of the prosecution’s case, which the jury obviously accepted, was that
Finkes shot and killed James Coyan, a 17-year-old boy whom she had employed at her local store
in Dublin, Ohio. The proof is clear that she shot him intentionally in a room above the store and
then put a pistol in his hand, called 911, and staged a scene to provide herself with a self-defense
justification for the crime. The question of motive is not clear, but it is clear that the jury did not
accept her plea of self-defense.
Finkes owned a retail shop known as “The Bait Store” in Dublin, Ohio. A two-bedroom
apartment and an office were on the second floor of the store building. She rented the apartment to
Glen Weingarner, for whom she had been the legal guardian since Weingarner suffered a stroke.
Finkes often stayed in the apartment during the week, but she owned a home adjacent to the store
where she lived on the weekends with her common-law husband, Hans Schlotterer. Finkes and
Schlotterer were married in 1965 and divorced in 1980, but continued to live together after the
divorce and hold themselves out as common-law husband and wife. Finkes kept money in several
places in the store and apartment, including in a dresser in her upstairs bedroom. Her testimony was
that at the beginning of April 2000, there was between $12,000 and $16,000 in the dresser.
Seventeen-year-old James Coyan was a troubled youth with a history of minor delinquency,
including petty theft and truancy. In January 2000, he appeared in juvenile court on delinquency
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No. 04-3806
Finkes v. Timmerman-Cooper
charges, including “aggravated menacing” against his mother. He was ordered to find a full-time
job, among other conditions. Coyan began working part-time for Finkes at the store in February or
March 2000. He became a full-time employee in April 2000.
Finkes testified that the store was burglarized on April 10, 2000, and $4,000 in cash was
taken from a cabinet in the store, along with cigarettes and lottery tickets. A week later, she noticed
a large sum of cash missing from her bedroom dresser. On April 29, she counted the money in the
dresser, and only $4,600 remained of the estimated $12,000 to $16,000. She suspected Coyan of
taking the money, but she did not confront him or inform anyone else of her suspicions.
Finkes and Schlotterer arrived at the store on Monday, May 1, at about 6:50 A.M. At
approximately 12:45 P.M., Finkes sent two of her employees on an errand, leaving only Coyan and
herself in the store. Schlotterer was outside in the yard. She testified that she went upstairs to go
to the bathroom and when she came out she saw Coyan walk into her bedroom. He sat on the edge
of the bed, opened the bottom dresser drawer, took out several bundles of money, and then rifled
through the top drawer. She decided to confront Coyan. She retrieved a .22 caliber pistol from the
bathroom and hid it behind her back. She then asked Coyan what he was doing, and he replied he
was not doing anything. She asked him if he was stealing money, which he denied, and said he was
getting money for the register. She again accused Coyan of stealing. According to Finkes, Coyan
stood up, started to pull a .9 mm pistol from a holster and took a couple of steps toward her. She
testified that she was “terrified” because she believed Coyan was going to shoot her and there was
no way for her to escape from the room except to get by Coyan. She took the gun from behind her
back and shot Coyan.
-3-
No. 04-3806
Finkes v. Timmerman-Cooper
Finkes testified that at first she thought she missed Coyan because he did not move and she
kept her gun trained on him. At that point, Finkes noticed that her husband, Schlotterer, was
standing to her left; but she does not know when he entered the room. She testified that Coyan then
fell onto the bed with the gun near his left hand partially out of the holster. She walked over to the
bed, took the gun the rest of the way from the holster and put it in Coyan’s right hand because she
wanted the “authorities . . . to know that he had it [in his hand] and he was going to use it on me.”
She then called 911 from a phone in her bedroom and falsely reported a robbery in progress.
She testified that she claimed the robbery was still ongoing because she was afraid the police would
not believe she acted in self-defense. She said she was afraid the police would not believe her
because she had had previous confrontations with the police. She went downstairs to see if anyone
was in the store. She told her husband to remain in the bedroom with the gun pointed at Coyan.
Finkes told two customers to leave the store and went back upstairs to check on her husband.
Coyan was still on the bed, and she did not know whether he was dead or alive. She ran downstairs
and called 911 again. She told the dispatcher that someone had come into her apartment and she
shot him. She then saw Officer Hall outside the store with his gun drawn. He motioned for her to
come towards him; she motioned for the officer to come inside the store. When she realized that the
officer was not going to come inside, she went upstairs to get her husband. She took the gun from
her husband and hid it on a shelf under some paper bags. She went outside and told the officer she
had shot Coyan.
The 911 dispatcher testified that Finkes told her there was a robbery in progress and she
heard her say, “Jimmy, Jimmy stand still” and “Dammit, put the gun down.” The dispatcher testified
-4-
No. 04-3806
Finkes v. Timmerman-Cooper
that when Finkes called back approximately two and one-half minutes later, the dispatcher asked
for more details and Finkes identified the man as an employee who had worked at the store a few
weeks. He had gone upstairs, and “[h]e got the gun out and so I shot him with mine.” When asked
if she was injured, Finkes responded, “No, I’m not injured. I shot before he did injure me.” The
dispatcher testified that she overheard her say, “Make sure it’s unlocked.”
Hall testified that Finkes and Schlotterer walked out of the store, and she told Hall that she
had shot Coyan upstairs because he had a gun and was trying to get her money. Hall was unfamiliar
with the building, and he asked her for directions to the second floor. Both Schlotterer and Finkes
started to go upstairs with Hall, but he ordered them to remain downstairs.
Hall found a man lying across the bed with a pistol in his right hand, which was positioned
above his head. An empty holster was tucked under his left leg. After observation, Hall presumed
the man was dead and rolled him over, exposing a gunshot wound to the chest. Hall discovered a
spent .22 caliber shell on the rug and some loose bills on the dresser. Later investigation also
revealed four packets of folded paper money on the dresser, $2,294 in the bottom drawer, and $452
in Coyan’s pocket. The .22 pistol that Finkes had hidden was also discovered and was the pistol
from which the casing found in the bedroom had been fired. The .9 mm pistol found in the bedroom
had a round in the chamber and another five rounds in the magazine. The hammer was down, and
the safety lock was on.
Finkes was interviewed by two Dublin police officers. She later testified that she lied by
telling the officers that a robbery was in progress when she made the first 911 call, that Coyan had
taken the gun completely out of the holster and pointed it at her before she shot him, and that she
-5-
No. 04-3806
Finkes v. Timmerman-Cooper
had unsuccessfully tried to take the gun out of Coyan’s hand after she shot him. She testified that,
midway through the interview, she decided to tell the truth. At that point she admitted that she did
not make the first 911 call until after she had shot Coyan, that Coyan had never taken the gun
completely out of the holster and pointed it at her, and that after she shot Coyan, she took the gun
the rest of the way out of the holster and placed it in his hand. She admitted that she shot Coyan
intentionally but said it was out of fear for her life because he pulled a gun on her and she believed
he was intent on killing her.
The prosecution had difficulty ascribing a motive for the crime. Its theory of the case at trial
was that Finkes killed Coyan in order to keep him from exposing Finkes’ illegal business practices,
such as failure to pay taxes. She lured him upstairs, shot him and then placed the gun in his hand
after he was dead to make the shooting look like self-defense.
We review de novo the decision of the District Court denying the habeas petition. Our
review is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-
32, 110 Stat. 1214 (1996). Under the Act, habeas relief may not be granted with respect to any claim
adjudicated on the merits in state court unless the adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or
resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). We must presume that all determinations of factual issues made by the state
court are correct unless the petitioner can rebut that presumption by clear and convincing evidence.
-6-
No. 04-3806
Finkes v. Timmerman-Cooper
See 28 U.S.C. § 2254(e)(1). In Williams v. Taylor, 529 US. 362 (2000), the Supreme Court
determined that a state court’s decision is contrary to clearly established federal law where that court
“arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if
the state court decides a case differently than this Court has on a set of materially indistinguishable
facts.” Id. at 413. The Williams Court further held that a state court unreasonably applies clearly
established Supreme Court precedent when it correctly identifies the governing legal principle in
the case, yet unreasonably applies that principle to the facts of the defendant’s case. See id.
II. Prosecutorial Misconduct
Finkes claims numerous instances of prosecutorial misconduct during the prosecution’s
cross-examination and during the closing argument. She argues that the misconduct deprived her
of a fair trial and entitles her to habeas relief. Specifically, she objects to (1) references that she
committed tax violations and other dishonest acts, (2) questions about her honesty in her business
transactions, (3) misrepresentations of her testimony, and (4) questions concerning why she did not
call her common-law husband to testify on her behalf. All of those claims fail because the state
court decision is not “contrary to” a decision of the Supreme Court.
1. Procedural Default
The State argues that all Finkes’ claims of prosecutorial misconduct are procedurally
defaulted because defense counsel did not object to the challenged statements or questions at trial.
Finkes did, however, raise the alleged prosecutorial misconduct on direct appeal. The opinion by
the Ohio Court of Appeals addresses each alleged instance of misconduct on the merits. In
-7-
No. 04-3806
Finkes v. Timmerman-Cooper
discussing the merits, the Court of Appeals noted in one place that “Defendant lodged no objection
to this testimony [concerning alleged tax violations by Finkes],” State v. Finkes, No. 01AP-310,
2002 WL 464998, at *9 (Ohio Ct. App. Mar. 28, 2002), and the court specifically stated that its
review of the prosecutor’s comments about the failure of Finkes’ husband to testify was for plain
error due to defense counsel’s failure to object at trial. Id. at *13. Then, in its summation of the
entire prosecutorial misconduct issue, the court states “we conclude that defendant has failed to
demonstrate plain error resulting from any question or argument to which she failed to object and
has failed to demonstrate improper conduct from any question or argument to which she objected.”
Id.
On habeas review, the District Court concluded that, with the exception of the argument
concerning the prosecution’s comments on the failure of Finkes’ husband to testify, the Ohio Court
of Appeals did not adequately state whether its “decision rested on federal law, a state procedural
default, or both.” Report and Recommendations at 23, J.A. at 532. It, therefore, reviewed all of the
prosecutorial misconduct claims on the merits except for Finkes’ claim that the prosecutor
improperly commented on Finkes’ failure to call her husband as a witness, which claim it found
procedurally defaulted. Id.
Like the District Court, we are not persuaded that the Ohio Court of Appeals clearly and
expressly relied on state procedural default — the failure of defense counsel to contemporaneously
object to the alleged errors at trial — to reject Finkes’ claims of prosecutorial misconduct. See
Harris v. Reed, 489 U.S. 255 (1989). We also doubt that the Ohio Court of Appeals adequately
rested its judgment on a state rule requiring contemporaneous objection when it rejected Finkes’
-8-
No. 04-3806
Finkes v. Timmerman-Cooper
arguments concerning the comments by the prosecutor about Finkes’ husband’s failure to testify.
After noting defense counsel’s failure to object, the state court stated, “Notwithstanding defendant’s
failure to preserve the issue for appeal, we conclude that the prosecution’s comments did not
constitute prosecutorial misconduct” and then proceeded to examine the claim on the merits. State
v. Finkes, 2002 WL 464998, at *12. Therefore, we will review all of Finkes’ prosecutorial
misconduct claims on the merits.
2. Merits of the Prosecutorial Misconduct Claim
(a) Comments Regarding Finkes’ Alleged Tax Violations, Dishonest Acts and
Questionable Business Dealings. — Finkes first complains about the prosecution’s questions on
cross-examination about her alleged tax law violations. As part of the prosecution’s case-in-chief,
Bait Store employees testified that Finkes always paid them in cash. She lodged no objection to this
testimony. When cross-examining Finkes, the prosecution asked her whether she paid her
employees in cash, and, if so, whether she paid applicable employment taxes. She admitted that she
paid her employees in cash and did not pay applicable taxes on their wages. She explained her
actions by implying that she did not have to report her employees’ wages because they did not earn
enough money to warrant doing so.
Finkes simply argues a general due process violation because the prosecution’s line of
questioning was improper under two Ohio Rules of Evidence: (1) Rule 404(B), which allows the
admission of evidence of other crimes, wrongs, or acts when offered for a limited purpose, such as
to establish proof of motive to commit the charged crime; and (2) Rule 608(B), which allows
questioning regarding specific instances of misconduct. Specifically, defendant contends that the
-9-
No. 04-3806
Finkes v. Timmerman-Cooper
prosecution’s questions were an attempt to use “other acts” evidence, such as the alleged tax law
violations, to supply a motive for defendant to murder Coyan. She contends that the prosecution
could not use such “other acts” evidence to supply a motive for the crime because the prosecution
did not provide substantial evidence, such as tax returns, financial records, accountant testimony or
an independent audit, to establish that Finkes had actually violated tax laws. The Ohio Court of
Appeals rejected this argument. State v. Finkes, 2002 WL 464998, at *10.
Finkes fails to comply with 28 U.S.C. § 2254(d)(1) requiring that state court rulings on such
issues must be “contrary to or an unreasonable application of,” Supreme Court precedent. Finkes
cites no applicable Supreme Court precedent and makes no argument that the state court’s ruling
violates this section of AEDPA. Finkes does not discuss or even mention AEDPA, nor recognize
that she must meet this standard. Therefore, we must affirm the District Court on this issue. Our
independent research discloses no Supreme Court authority that would forbid such cross-
examination.
(b) Comments about the Failure of Hans Schlotterer, Finkes’ Common-law Husband,
to Testify. — During closing arguments and rebuttal, the prosecution questioned several times why
Finkes’ common-law husband, Hans Schlotterer, did not testify:
Hans Schlotterer, kind of an enigma in this case . . . . They are on good terms. They
still consider themselves husband and wife . . .
Mr. Schlotterer, unlike all of these witnesses the defense did call was, according to
Finkes, the only living person in The Bait Shop other than her at the time that Jimmy
Coyan was killed.
[Schlotterer] is now presumably in her corner. Why did the defense not call him to
support her self-defense claim?
-10-
No. 04-3806
Finkes v. Timmerman-Cooper
So why is it there’s one witness that can support Finkes in herself defense [sic] claim
as been implied here by Carol Finkes in her testimony, why, why, why, did they not
call him to give that support? You decide.
We know she planted the gun. Why shouldn’t she plant the money and plant the
body? And why isn’t Hans here to tell us about that . . . ?
[Finkes] has the burden to prove self-defense . . . . And it is fair to ask where is
Hans[?]
On this claim that due process prohibits the prosecutorial statements concerning the failure
to call Finkes’ former husband, she cites only the old Supreme Court case of Graves v. United
States, 150 U.S. 118 (1893). In that case, the Court held as a matter of federal evidence law, not as
a matter of due process, that the prosecutor’s closing argument commenting on the absence of the
wife from the courtroom (the prosecutor said that the defendant’s wife “ought to have been sitting
by the side of her husband during the trial”) was improper because the wife was not a “competent
witness.” The Graves court acknowledged the presumption that when the accused has it “within his
power to produce witnesses whose testimony would elucidate the transaction, the fact that he does
not do it creates the presumption that the testimony, if produced, would be unfavorable.” Id. at 121.
The Court merely held that the presumption does not apply if the witness is incompetent to testify.
In Graves, the Court simply ruled as an evidentiary matter. It did not elevate its ruling to a
constitutional level or in any way suggest that due process requires such a result. In the instant case,
there is certainly no showing that this question rises to the level of a federal due process violation.
Both the Ohio courts and the District Court held that the prosecutor’s comments were proper under
both the Ohio and the federal law of evidence. Furthermore, Finkes cites no Supreme Court
precedent holding that due process forbids such prosecutorial statements about a missing witness.
-11-
No. 04-3806
Finkes v. Timmerman-Cooper
III. Evidentiary Rulings
At trial, Finkes sought to introduce evidence of Coyan’s prior acts of violent behavior to
support her claim of self-defense. Finkes contends that the trial court denied defendant her right to
due process and a fair trial by granting the prosecution’s motion in limine prohibiting her from
eliciting testimony regarding past specific instances of Coyan’s threatening and violent conduct.
The first prior act of violence that Finkes sought to introduce was from a defense witness.
The witness would have testified that Coyan opened his jacket and revealed a gun after the two
began to argue. The prosecution moved the trial court in limine to exclude further testimony
regarding an alleged oral threat made by Coyan to the witness on the ground that Finkes did not have
prior knowledge of the incident. Defense counsel argued that the statement should be included
because it demonstrated the reason Coyan showed the witness the gun. The trial court excluded the
alleged oral threat. Finkes also complains that the trial court improperly prohibited defense counsel
from discussing in closing argument the “aggravated menacing” charge filed against Coyan by his
mother.
The Ohio Court of Appeals affirmed the exclusion based on the Ohio Supreme Court’s ruling
in State v. Barnes, 759 N.E.2d 1240 (Ohio 2002). Barnes holds that: “[A] defendant asserting self-
defense cannot introduce evidence of specific instances of a victim’s conduct to prove that the victim
was the initial aggressor.” Id. at 1245. Barnes cited authority from the federal courts interpreting
the analogous Federal Rules of Evidence 404 and 405. See, e.g., United States v. Keiser, 57 F.3d
847, 857 (9th Cir. 1985). Based on the Barnes opinion, Finkes decided not to raise the issue with
-12-
No. 04-3806
Finkes v. Timmerman-Cooper
the Ohio Supreme Court because she believed it would be futile. The State now claims that the issue
is waived because Finkes failed to exhaust the claim in the state courts. See, e.g., United States v.
Keiser, 57 F.3d 847, 857 (9th Cir. 1995).
Even if we agreed that the Barnes case would have rendered futile an attempt to assert
Finkes’ claim in the Ohio Supreme Court, we would reject her claim on the merits. Finkes does not
cite any Supreme Court authority contrary to the ruling of the Ohio trial court or the Ohio Court of
Appeals. She does not argue the merits of this issue at all in her brief submitted to this Court.
Therefore, again we conclude that Finkes makes no showing that the Ohio court’s ruling was
contrary to, or an unreasonable application of, clearly established federal law as determined by the
United States Supreme Court, as required by 28 U.S.C. § 2254(d)(1).
IV. Ineffective Assistance of Counsel
Finkes contends that her trial counsel failed on multiple occasions to enter objections to
improper questions and comments by the prosecutor during closing argument and that she was
denied effective assistance of counsel in contravention of her rights under the Sixth and Fourteenth
Amendments to the United States Constitution. To prevail on an ineffective assistance of counsel
claim, a defendant must meet the two-prong test set forth in Strickland v. Washington, 466 U.S. 668
(1984). A defendant must first demonstrate that counsel’s performance was deficient. The
defendant may prove deficient conduct by identifying acts or omissions that violate reasonable
professional judgment. We must determine whether, in light of all the circumstances, the identified
acts or omissions were outside the wide range of professionally competent assistance. Id. at 690.
-13-
No. 04-3806
Finkes v. Timmerman-Cooper
We conclude that Finkes has failed to demonstrate any deficiency in trial counsel’s conduct.
Because the Ohio courts have held that the prosecution did not engage in improper
questioning, argument or conduct under state law, and we find no such deficiency under the Sixth
Amendment, defense counsel’s failure to object to the prosecutor’s actions does not constitute
unprofessional conduct under the Strickland test.
For the foregoing reasons, we affirm the judgment of the District Court.
-14-
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864 So.2d 1178 (2004)
Jeffrey W. WELKER, Appellant,
v.
SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC., a corporation, Appellee.
No. 1D02-4894.
District Court of Appeal of Florida, First District.
January 8, 2004.
Rehearing Denied February 6, 2004.
*1180 Lawrence C. Datz and Albert Datz of Datz & Datz, P.A., Jacksonville, for Appellant.
Harvey L. Jay, III, Jacksonville, for Appellee.
WEBSTER, J.
Appellant seeks review of a final order dismissing with prejudice his three-count amended complaint naming appellee as the defendant. He asserts that the first and third counts state causes of action, which should have been permitted to proceed. Because we conclude that (1) the third count of the amended complaint states a cause of action against appellee for negligent interference with appellant's parental rights; (2) such a claim is not one for medical malpractice, requiring compliance with the presuit screening requirements of section 766.106, Florida Statutes (1999); and (3) the impact rule does not preclude the recovery of damages for emotional distress incident to such a claim; we reverse the trial court's order to the extent it dismissed that count, and remand for further proceedings. We affirm the trial court's dismissal with prejudice of the other two counts. We also certify to the supreme court a question regarding the applicability of the impact rule to such claims, which we believe to be of great public importance.
I.
Appellant's amended complaint had three counts. To the extent pertinent, he alleged the following:
[Appellee] operated a business held out to the public under the name of "Psychological Associates" and represented to the public as a provider of mental health services....
... Valerie Brink ... was an agent or employee of the [appellee], held herself out to be a licensed mental health counselor, and worked at Psychological Associates. Further, ... Brink acted within the scope and course of her employment....
*1181 [Appellant] is an individual who was formerly married to Penelope Donham.... They had two minor children....
Pursuant to a final judgment dissolving the marriage between [appellant] and Donham, [appellant] had custody of their minor children. From the time that [appellant] and Donham dissolved their marriage until the events described below, [appellant] and the children maintained their primary physical residence in Arizona.
The children came to visit Donham in Jacksonville during the summer of 1999. While the children were visiting her, Donham engaged the services of Brink.
On or about July 20, 1999, Brink made a written statement in the form of a letter addressed "To Whom It May Concern" and gave the opinion that [appellant's] and Donham's minor children suffered from a mental disorder as a direct result of [appellant's] misconduct. [Appellant's] purported misconduct included, but was not limited to, child abuse committed by [appellant] against his children. A copy of the letter is attached.
....
... Donham used Brink's letter to obtain an injunction against domestic violence against [appellant], without advance notice to him. Because [appellant] did not have advance notice of the injunction, he did not have an opportunity to defend against the allegations. The injunction denied [appellant] legal custody of, visitation with, and access to his children and effectively denied him the parental rights designated in the final judgment of dissolution of marriage....
... [Appellant] sought restoration of his parental rights by consolidating the injunction case with an enforcement proceeding related to the final judgment of dissolution of marriage which awarded him child custody. Those proceedings were successful resulting in court-ordered return of the children and dissolution of the aforementioned injunction.
As indicated, a copy of Brink's letter was attached to the complaint as an exhibit. Among other things, it stated that appellant's children met "all ... criteria for Post Traumatic Stress Disorder," and that "[t]he traumas which the children have experienced [we]re all directly caused by [appellant]." It also asserted Brink's opinion that "contact with [appellant] [wa]s psychologically harmful, and pose[d] a serious threat of bodily harm."
Count I alleged that Brink violated a statutory duty imposed by section 39.201, Florida Statutes (1999), by failing to report known or suspected child abuse to the Department of Children and Family Services. According to the allegations, had Brink made the required report, the Department of Children and Family Services would have been obliged to conduct an investigation. Allegedly because no such investigation was conducted, appellant "lost his parental rights for approximately one (1) year." Appellant claimed that he had been "injured and damaged by interference with parental rights, incurring expenses for attorney's fees, court costs, and suit money, and by suffering mental anguish, humiliation, embarrassment, and the loss of companionship and society of his children." Count II sought damages for the same injuries, alleging that Brink's letter contained "false and defamatory statements" about him. Count III also sought damages for the same injuries, alleging that it was reasonably foreseeable that Donham would publish the contents of Brink's letter to others; that Brink had a duty to exercise reasonable care to investigate "whether the purported factual basis *1182 of her opinion was true ..."; that "Brink breached her duty of reasonable care by not investigating or validating her statements"; and that, as a result, appellant had sustained the damages alleged.
Appellee moved to dismiss each count of the amended complaint with prejudice. As to count I, it contended that, as a matter of law, section 39.201, Florida Statutes (1999), did not create a civil cause of action for damages. As to count II, it contended (among other things) that, on its face, the amended complaint demonstrated that any claim for libel or defamation was barred by the applicable two-year statute of limitations. Finally, as to count III, it contended (among other things) that any negligence claim was barred because it was a claim for medical malpractice, and appellant had failed to comply with the presuit screening requirements of section 766.106, Florida Statutes (1999); and because the impact rule precluded recovery, as appellant could not claim that he sustained any physical injury as the result of an impact. Following a hearing, the trial court entered its order dismissing with prejudice (but without discussion) all three counts of the amended complaint. This appeal follows.
II.
Concluding that the three counts of the amended complaint failed to state causes of action, the trial court dismissed them all, with prejudice. Because the sufficiency of allegations of a complaint to state a cause of action is a question of law, our standard of review is de novo. E.g., Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla.2002). Moreover, we "must assume that all material factual allegations are true and must draw all reasonable inferences in favor of the pleader." Clark v. Gumby's Pizza Sys., Inc., 674 So.2d 902, 904 (Fla. 1st DCA 1996). Appellant does not challenge the dismissal of his defamation claim (count II). Accordingly, we affirm the dismissal of that count without further discussion.
In count I of the amended complaint, appellant alleged that appellee was vicariously liable for Brink's breach of a statutory duty, created by section 39.201, Florida Statutes (1999), to report known or suspected child abuse to the Department of Children and Family Services. Appellee argued in its motion to dismiss that section 39.201 did not create a statutory cause of action for damages.
Section 39.201 does not expressly create a cause of action for violation of its terms. A cause of action may, in appropriate circumstances, be implied from the language of a statute. Because section 39.201 does not expressly create a cause of action for violation of its terms, we must determine whether the legislature intended to create one notwithstanding its failure expressly to do so. See Murthy v. N. Sinha Corp., 644 So.2d 983, 985 (Fla.1994) ("legislative intent ... should be the primary factor considered by a court in determining whether a cause of action exists when a statute does not expressly provide for one"). We find nothing in section 39.201 or related provisions that suggests such an intent. On the contrary, we note that section 39.205, which appears to address the subject of penalties for failure to report known or suspected child abuse makes such nonfeasance a first-degree misdemeanor. § 39.205(1), Fla. Stat. (1999). It says nothing about the availability of a cause of action for damages. Moreover, those courts which have been presented with the same question regarding predecessor versions of section 39.201 have all concluded that no cause of action was created. Freehauf v. Sch. Bd. of Seminole County, 623 So.2d 761 (Fla. 5th DCA 1993) (holding that section 415.504, Florida *1183 Statutes (1987), does not create an implied cause of action for failure to report known or suspected child abuse as required by the statute); J.B. v. Dep't of Health & Rehab. Servs., 591 So.2d 317 (Fla. 4th DCA 1991) (same); Fischer v. Metcalf, 543 So.2d 785 (Fla. 3d DCA 1989) (en banc) (holding that section 827.07, Florida Statutes (1979), does not create an implied cause of action for failure to report known or suspected child abuse as required by statute). Accordingly, we hold that section 39.201, Florida Statutes (1999), does not create an implied cause of action for damages, and affirm the trial court's dismissal with prejudice of count I of the amended complaint.
III.
Count III of the amended complaint sought damages based on a theory of negligent interference with parental rights. Appellee argues that the trial court correctly dismissed that count with prejudice because (1) it was a claim for medical malpractice, and appellant had failed to comply with the presuit screening requirements of section 766.106, Florida Statutes (1999); and (2) the impact rule precluded recovery, as appellant could not claim that he sustained any physical injury as the result of an impact. We disagree with both arguments.
A.
Appellee contends that, because it is a "health care provider" as defined in chapter 766, Florida Statutes (1999), appellant was required to comply with the presuit screening requirements of section 766.106 before filing the claim alleged in count III. Although failure to comply with the presuit screening requirements before filing an action is not necessarily fatal, it is if compliance does not occur within the two-year statutory limitations period, requiring dismissal with prejudice. Kukral v. Mekras, 679 So.2d 278 (Fla.1996). According to appellee, because it is undisputed that appellant did not comply with the presuit screening requirements, and it is clear from the face of the complaint that the applicable two-year medical malpractice statute of limitations had run, the trial court correctly dismissed count III with prejudice. The flaw in appellee's argument is that it overlooks the fact that the section 766.106 presuit screening requirements apply only to a "`[c]laim for medical malpractice,'" which is defined as "a claim arising out of the rendering of, or the failure to render, medical care or services." § 766.106(1)(a), Fla. Stat. (1999).
In the first place, a claim is one for medical negligence for purposes of section 766.106 only if it is one as to which, to recover, the plaintiff must establish that the defendant failed to meet the "medical negligence standard of care as set forth in section 766.102(1)." Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So.2d 974, 980 (Fla.2002). Accord Broadway v. Bay Hosp., Inc., 638 So.2d 176 (Fla. 1st DCA 1994). According to section 766.102(1), a plaintiff must carry such a burden to recover only if "death or injury resulted from the negligence of a health care provider as defined in s. 768.50(2)(b)." § 766.102(1), Fla. Stat. (1999). Although section 768.50(2)(b) was repealed in 1986, our supreme court has held that we must look to the language of that statute at the time of its original enactment in 1977 to determine what "health care providers" are entitled to rely on the provisions of chapter 766, including section 766.106. Integrated Health Care Servs., 840 So.2d at 978-79. In Integrated Health Care Services, the court said that such "health care providers" included only:
hospitals, physicians, podiatrists, dentists, chiropractors, naturopaths, nurses, *1184 clinical laboratories, physicians' assistants, physical therapists and physical therapist assistants, health maintenance organizations, and associations for professional activity by health care providers, as well as certain ambulatory surgical centers, blood banks, plasma centers, industrial clinics, and renal dialysis facilities.
Id. at 979. Mental health counselors, such as Brink, are not included. Therefore, logic dictates that a claim for negligence based on actions or inactions by Brink is not a "`[c]laim for medical malpractice,'" as that term is used in section 766.106. Because such a claim is not one for medical malpractice, by the express language of section 766.106, it is not subject to that section's presuit screening requirements. See generally Weinstock v. Groth, 629 So.2d 835 (Fla.1993) (holding that, because psychologists were not included in the list of health care providers set forth in section 768.50(2)(b), the plaintiff did not have to comply with the presuit screening requirements of section 766.106 before filing an action against a psychologist).
In addition, the claim asserted in count III is not one for medical malpractice because it does not arise "out of the rendering of, or the failure to render, medical care or services" to appellant. In J.B. v. Sacred Heart Hospital of Pensacola, 635 So.2d 945 (Fla.1994), the plaintiff had filed an action against the defendant hospital in federal court, alleging that the hospital had been negligent in arranging for the plaintiff to transport his brother (who the hospital knew had AIDS) to another treatment facility without warning the plaintiff (who did not know his brother had AIDS) of the level of care that would be required during the trip and the risk involved to the plaintiff. Id. at 946-47. The complaint further alleged that, as a result of the hospital's negligence, the plaintiff had contracted the AIDS virus when he came into contact with fluid around the site of a heparin lock in his brother's arm. Id. The hospital argued that the complaint stated a claim for medical malpractice and that, because the plaintiff had failed to comply with the presuit screening requirements of chapter 766, it must be dismissed. Id. at 947. The federal district court agreed, and dismissed the complaint. Id.
On appeal, the federal court of appeals certified two questions to our supreme court. Id. at 946. The first asked whether the complaint was subject to the two-year medical malpractice statute of limitations, and the second asked whether chapter 766 applied to the claim. Id. In other words, the gist of both questions was whether the claim stated in the complaint was one for medical malpractice. The court answered both questions in the negative. Id. The hospital argued that, because the action "arose from the medical diagnosis, treatment, or care" of the plaintiff's brother, the claim was one alleging medical malpractice. Id. at 948 n. 3. The court disagreed. It held that (1) because the injuries alleged by the plaintiff did not arise "from the [h]ospital's medical diagnosis, treatment, or care of [the plaintiff]," the action was "not a medical malpractice action" and, therefore, the two-year medical malpractice statute of limitations was inapplicable (id. at 948); and (2) because "[t]he complaint d[id] not allege that the [h]ospital was negligent in any way in the rendering of, or the failure to render, medical care or services to [the plaintiff]," it "d[id] not state a medical malpractice claim for chapter 766 purposes, and the notice and presuit screening requirements [we]re inapplicable." Id. at 949. Applying the holdings in J.B. to this case, we conclude that, because count III does not allege that either Brink or appellee was negligent in "the rendering of, or the failure to render, medical care or services" to *1185 appellant, that count does not state a claim for medical malpractice, and the presuit screening requirements of section 766.106 do not apply.
B.
We can find no language in chapter 766 to suggest that appellee should be entitled to the benefit of the section 766.106 presuit screening requirements when it is alleged to be only vicariously liable for the negligence of an agent, and the negligence alleged does not constitute medical malpractice. On the contrary, section 766.106(2) would appear to require compliance with the presuit screening requirements only "prior to filing a claim for medical malpractice." Moreover, because the claim asserted by appellant in count III is not one for medical malpractice, logically the fact that appellee is alleged to be vicariously liable for Brink's negligence should have no impact on whether it is entitled to the benefit of the provisions of section 766.106. It would make little sense to require a plaintiff to comply with the presuit screening requirements as to a defendant alleged to be only vicariously liable in a situation where the active tortfeasor would not be entitled to the benefit of those provisions. Accordingly, we hold that appellant was not obliged to comply with the presuit screening requirements of section 766.106. Although arguably distinguishable on its facts, we note conflict with Goldman v. Halifax Medical Center, Inc., 662 So.2d 367 (Fla. 5th DCA 1995), which appears to reach the opposite conclusion, holding that hospitals are entitled to the benefit of section 766.106 whenever a claim is made that they are vicariously liable for negligent acts of their agents committed in the course of their employment, regardless of the nature of the negligence.
IV.
Appellee next argues that, even if the trial court was incorrect in concluding that count III must be dismissed for failure to comply with the presuit screening requirements of section 766.106, it correctly dismissed that count because it is barred by the impact rule. Again, we disagree.
Recently, our supreme court explained the impact rule as follows:
The rule requires that "before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries sustained in an impact."... The impact rule has been traditionally applied primarily as a limitation to assure a tangible validity of claims for emotional or psychological harm.... Florida jurisprudence has generally reasoned that such assurance is necessary because, unlike physical injury, emotional harm may not readily align with traditional tort law damage principles. Our courts have explained that the existence of emotional harm is difficult to prove, resultant damages are not easily quantified, and the precise cause of such injury can be elusive.... This Court has also theorized that without the impact rule, Florida courts may be inundated with litigation based solely on psychological injury.
Rowell v. Holt, 850 So.2d 474, 477-78 (Fla. 2003). The court has also recognized "that `the underlying basis for the [impact] rule is that allowing recovery for injuries resulting from purely emotional distress would open the floodgates for fictitious or speculative claims.'" Gracey v. Eaker, 837 So.2d 348, 355 (Fla.2002) (quoting from R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995)).
A.
The impact rule precludes recovery of damages for emotional distress, *1186 mental anguish and the like absent physical injury resulting from an impact. It has no bearing on a plaintiff's right to recover for items of damages other than emotional distress when those damages are the proximate result of a defendant's negligence. In count III of his amended complaint, appellant sought to recover as damages the attorney's fees and court costs he was required to expend in litigation with his former wife to secure the return of his children, in addition to damages attributable to the emotional distress and mental anguish allegedly caused by the loss of custody and all other parental rights for a one-year period. The impact rule has no bearing on appellant's right to recover such items of damages, provided that appellant is able to prove his case. As we explained in Baxter's Asphalt & Concrete, Inc. v. Liberty County, 406 So.2d 461, 467 (Fla. 1st DCA 1981) (on petition for rehearing), quashed on other grounds, 421 So.2d 505 (Fla.1982):
Where the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interests, such costs and expenses, including reasonable attorney's fees upon appropriate proof, may be recovered as an element of damages.
Accord Winselmann v. Reynolds, 690 So.2d 1325, 1328 (Fla. 3d DCA 1997); De Pantosa Saenz v. Rigau & Rigau, P.A., 549 So.2d 682, 685 (Fla. 2d DCA 1989). Accordingly, even if the impact rule precludes appellant from seeking damages attributable to emotional distress or mental anguish, he is entitled to proceed with count III to the extent it seeks attorney's fees and court costs he was required to expend to secure the return of his children. Therefore, the trial court erred when it dismissed the count with prejudice.
B.
Our supreme court has acknowledged that "[t]he impact rule is not ... an inflexible, unyielding rule of law, so sacred that it must be blindly followed without regard to context." Rowell, 850 So.2d at 478. It has also expressed doubt "that the impact doctrine ever was intended to be applied to a tort ... where emotional damages are an additional `parasitic' consequence of conduct that itself is a freestanding tort apart from any emotional injury." Kush v. Lloyd, 616 So.2d 415, 422 (Fla.1992) (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 361-65 (5th ed.1984)). A convincing argument might be made that, if proved to be true, the conduct of Brink constituted "a freestanding tort," as to which damages for emotional distress or mental anguish are merely "an additional `parasitic' consequence." See generally Stone v. Wall, 734 So.2d 1038, 1044 (Fla.1999) (where, in the course of concluding that Florida should recognize a common law tort of intentional interference with a custodial parent-child relationship, the court noted that it "ha[d] consistently recognized that the parent-child relationship has fundamental constitutional significance" and that "[t]ort law has long protected `relational' interests, such as those between family members, from interference"); United States v. Dempsey, 635 So.2d 961, 964-65 (Fla.1994) (where the court stated that "it is the policy of this state that familial relationships be protected and that recovery be had for losses occasioned because of wrongful injuries that adversely affect those relationships").
Our supreme court has also recognized that, while narrowly drawn, "[e]xceptions to the rule have been ... created ... in a... class of cases in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy *1187 concerns, have surmounted the policy rationale undergirding application of the impact rule." Rowell, 850 So.2d at 478. Thus, in Kush v. Lloyd, 616 So.2d 415 (Fla.1992), the court held that the impact rule should not be applied to preclude damages for emotional distress in wrongful birth cases. Id. at 423. In doing so, it noted that the rule did not apply to torts for "which damages often are predominately emotional, such as defamation or invasion of privacy." Id. at 422. It then gave the following rationale for its conclusion: "There can be little doubt that emotional injury is more likely to occur when negligent medical advice leads parents to give birth to a severely impaired child than if someone wrongfully calls them liars, accuses them of unchastity, or subjects them to any other similar defamation." Id. at 422-23.
In Tanner v. Hartog, 696 So.2d 705 (Fla. 1997), relying on its decision in Kush, the court held that the impact rule should not be applied to preclude damages for emotional distress in an action brought by parents of a stillborn child alleging that the stillbirth was the result of the defendant's negligence. Id. at 708. In doing so, it acknowledged "that the law does not provide a remedy for every wrong," but concluded that "it is difficult to justify the outright denial of a claim for the mental pain and anguish which is so likely to be experienced by parents as a result of the birth of a stillborn child caused by the negligence of another." Id.
Next, in Gracey v. Eaker, 837 So.2d 348 (Fla.2002), the court held that the impact rule should not be applied to preclude damages for emotional distress in a case where the plaintiffs claimed that their psychotherapist breached fiduciary and statutory duties of confidentiality to patients by divulging to each "`sensitive and personal information'" disclosed by the other to him. Id. at 357. It again based its holding on the analysis set out in Kush, saying:
The emotional distress that the [plaintiffs] allege they have suffered is at least equal to that typically suffered by the victim of a defamation or an invasion of privacy. Indeed, we can envision few occurrences more likely to result in emotional distress than having one's psychotherapist reveal without authorization or justification the most confidential details of one's life.
Id. at 356.
Most recently, in Rowell v. Holt, 850 So.2d 474 (Fla.2003), the court held that the impact rule should not be applied to preclude damages for emotional distress in an action where legal malpractice on the part of the defendant resulted in the plaintiff wrongfully having to spend a protracted period in pretrial confinement. Id. at 475-76. The court based its holding on the analyses in Kush and Tanner. Id. at 478-79.
There exist common threads in all of the foregoing cases in which the court established exceptions to the impact rule. In all, the likelihood of emotional injury was clearly foreseeable; the emotional injury was likely to be significant; the issue of causation was relatively straightforward; and it was unlikely that creating an exception to the rule would result in a flood of fictitious or speculative claims. We believe that count III of appellant's amended complaint likewise meets all of these criteria.
There can be little question about the proposition that one should be able to foresee that actions that result in depriving a parent of custody of his or her children and all other parental rights for a period of one year is likely to cause the parent mental anguish and emotional distress. Likewise, there can be little question *1188 about the proposition that the mental anguish and emotional distress are likely to be significant. To paraphrase Gracey, the emotional injury one is likely to suffer when he or she is deprived of custody of his or her children and all other parental rights for a substantial period must be "at least equal to that typically suffered by the victim of a defamation or an invasion of privacy." 837 So.2d at 356. Based on the allegations contained in count III, causation would appear to be relatively straightforward. Finally, it is no more likely that excepting claims such as appellant's from the impact rule will result in a flood of fictitious or speculative claims than it was that creating the exceptions in Kush, Tanner, Gracey or Rowell would lead to such a result. Accordingly, reasoning by analogy from the decisions in those cases, we hold that the impact rule does not bar appellant's request, made in count III of his amended complaint, for damages resulting from mental anguish and emotional distress. We also certify to the supreme court the following question, which we believe to be of great public importance:
DOES FLORIDA'S IMPACT RULE PRECLUDE THE RECOVERY OF DAMAGES FOR EMOTIONAL INJURIES IN A NEGLIGENCE CASE ALLEGING THAT THE DEFENDANT'S ACTIONS WRONGFULLY CAUSED THE PLAINTIFF TO LOSE CUSTODY OF HIS CHILDREN AND ALL OTHER PARENTAL RIGHTS FOR A SIGNIFICANT PERIOD?
V.
We affirm the trial court's dismissal with prejudice of counts I and II of appellant's amended complaint. We reverse the dismissal of count III, and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
KAHN and VAN NORTWICK, JJ., concur.
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[Cite as Copeland v. Pinter, 2019-Ohio-409.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
LAUREEN RUTH MOORE : OPINION
COPELAND, SUCCESSOR
TRUSTEE, CLARENCE M. :
MOORE AND LAURA P. CASE NO. 2017-P-0048
MOORE TRUST, :
Appellee, :
- vs - :
(WILLIAM T. PINTER, et al., :
Appellants.) :
Appeal from the Portage County Court of Common Pleas, Case No. 2016 CV 01011.
Judgment: Appeal dismissed.
Darrell Arthur Clay, Aimee Weiss Lane, and Brendan D. Healy, Walter Haverfield LLP,
The Tower at Erieview, 1301 East Ninth Street, Suite 3500, Cleveland, OH 44114 (For
Appellee).
Victor V. Vigluicci, Portage County Prosecutor, and Christopher J. Meduri, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Hiram Township).
Edgar H. Boles, Dinn, Hockman & Potter, LLC, 5910 Landerbrook Drive, Suite 200,
Cleveland, OH 44124; Lee Alfred Chilcote, and Christina C. Tizzano, Chilcote Law Firm,
LLP, 12434 Cedar Road, Suite 7, Cleveland Heights, OH 44106 (For Leona A. Pinter
and William T. Pinter).
THOMAS R. WRIGHT, P.J.
{¶1} The Hiram Township Board of Zoning Appeals (BZA) issued a
nonconforming use certificate for the Far View Airport to Appellee Laureen Ruth Moore
Copeland, Successor Trustee, Clarence M. Moore and Laura P. Moore Trust (Moore)
with conditions. Moore appealed the BZA decision to the Portage County Court of
Common Pleas, and Hiram Township was the appellee. Neither William T. Pinter nor
Leona Pinter appealed the BZA’s decision nor were they otherwise parties.
{¶2} Hiram Township appealed the trial court’s decision to this court in a
companion case, numbered 2017-P-0044, and Moore cross-appealed.
{¶3} In this case, appellants, William T. and Leona Pinter (the Pinters),
separately appeal the trial court’s decision asserting two assigned errors.
{¶4} In response, Moore argues for dismissal because the Pinters lack standing
to appeal. We agree.
{¶5} A person has standing to appeal a Board of Zoning Appeals’ decision under
R.C. 2506.01 as a party to the proceedings if he:
{¶6} “‘(1) was a resident, elector, and property owner of the township directly
affected by the zoning change, (2) * * * appeared before a township board of zoning
appeals with an attorney to protest the zoning change, and (3) * * * stated his intention on
the record to appeal the board's decision to the common pleas court.’ Kraus v. Put-In-
Bay Township Bd. of Zoning and Appeals, 6th Dist. No. OT-04-011, 2004-Ohio-4678, at
¶15.” Hofer v. N. Perry Bd. of Zoning Appeals, 11th Dist. Lake No. 2007-L-165, 2008-
Ohio-6876, ¶17.
{¶7} The Pinters appeared at the BZA hearing with counsel and were
neighboring residents with an interest in the decision. However, they did not appeal the
decision to the trial court and were not otherwise parties.
2
{¶8} R.C. 2506.04 permits an appeal from the trial court’s decision in an
administrative appeal, and states in part, “[t]he judgment of the [trial] court may be
appealed by any party on questions of law as provided in the Rules of Appellate
Procedure and, to the extent not in conflict with those rules, Chapter 2505. of the Revised
Code.” (Emphasis added.)
{¶9} Thus, although the Pinters may have had standing to appeal the BZA
decision to the court of common pleas, they did not do so. The Pinters likewise did not
move to intervene via Civ.R. 24 as parties in the appeal to the trial court. Nutter v.
Concord Tp. Bd. of Zoning Appeals, 11th Dist. Lake No. 92-L-118, 1993 WL 256808, *2
(June 30, 1993) (recognizing interested property owner’s right to intervene).
{¶10} Because the Pinters were not parties to the appeal before the trial court,
they do not have standing to appeal its decision. R.C. 2506.04; In re Stanley, 9th Dist.
Summit No. 20128, 2000 WL 1507917, *3 (Oct. 11, 2000); Bailes v. Martino, 2 Ohio
App.2d 197, 199, 207 N.E.2d 385, 387 (7th Dist.1963) (holding the failure to appeal a
board’s decision and failing to intervene precludes the right to allege error on appeal).
{¶11} Accordingly, the Pinters’ appeal is dismissed.
CYNTHIA WESTCOTT RICE, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
3
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32 A.3d 891 (2011)
WHARTON
v.
PITTSBURGH PARKING AUTHORITY.
No. 574CD11.
Commonwealth Court of Pennsylvania.
December 30, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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Filed 10/6/16 In re I.M. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re I.M., a Person Coming Under the Juvenile
Court Law.
MADERA COUNTY DEPARTMENT OF F072820
SOCIAL SERVICES,
(Super. Ct. No. MJP017220)
Plaintiff and Respondent,
v. OPINION
WILLIAM B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Madera County. Thomas L.
Bender, Judge.
Karriem Baker, under appointment by the Court of Appeal, for Defendant and
Appellant.
Regina A. Garza, County Counsel, Miranda P. Neal, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
William B. (father) contests the orders continuing dependency jurisdiction of his
daughter I.M., now four years old. We affirm.
FACTUAL AND PROCEDURAL HISTORY
First Detention
In August of 2013, C.M. (mother) and father did not live together. From the
record, it appears that mother was 18 years old and a dependent herself who lived in a
foster home placement with I.M. Mother and father had a previously implemented
family court custody order, which apparently consisted of shared custody of I.M.
On August 27, 2013, the Madera County Department of Social Services/Child
Welfare Services (department) filed a Welfare and Institutions Code section 3001 petition
on behalf of I.M., alleging father’s actions failed to protect I.M. and placed her at
substantial risk of physical harm and serious emotional damage. (§ 300, subds. (b) &
(c).) The detention report alleged father made false allegations against mother in an
effort to show she was unfit to care for I.M., including allegations that I.M. was
physically and sexually abused and suffered severe ongoing diaper rash while in mother’s
care. The department noticed no such injuries on I.M., and that the rashes on the child
disappeared while in mother’s care. The department asserted father covertly caused the
injuries and rashes in an attempt to make mother look unfit.
Social Worker Mee Wang (SW Wang) had worked with mother since she was a
16-year-old dependent, and she became mother’s primary social worker in September of
2012. SW Wang found mother attentive to I.M.’s needs and she had no safety concerns
for I.M. while in mother’s care. SW Wang did not believe father’s allegations of
mother’s abuse against I.M.
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2.
Mother reported to SW Wang that she was concerned because, after visits with
father, I.M. would not sleep in her own bed, she had nightmares, and woke up screaming.
Mother also stated I.M. acted out after father became volatile and verbally abusive at the
parents’ child exchanges. At the exchanges, with I.M. present, father threatened to harm
and kill mother. During one exchange, father drove his vehicle, with I.M. in the car,
towards mother to intimidate her and then drove off erratically.
In August of 2013, the department removed I.M. from father’s care and placed her
with mother.
On August 28, 2013, the juvenile court found a prima facie showing I.M. was a
child within the description of section 300, subdivisions (b) and (c). I.M. was ordered to
remain in mother’s custody, but removed from father’s care.
Jurisdiction
In the report prepared in anticipation of jurisdiction, the department stated that,
during his time with I.M., father took I.M. to the Madera Community Hospital Family
Health Services Clinic (the Clinic) rather than her primary care pediatrician, Alfredo
Garcia, M.D., where she was prescribed medication that was not reported to mother or
Dr. Garcia, placing I.M. at risk of harm. As a result of this conduct, the department filed
an amended petition on September 5, 2013, alleging father placed I.M. at risk of suffering
serious non-accidental physical harm and failed to protect her. (§ 300, subds. (a) & (b).)
At the contested jurisdiction hearing held September 26 and October 2, 2013,
Rojelio Garcia testified that mother, her boyfriend Frankie and I.M. stayed at his place
for approximately three weeks. According to Garcia, mother would go to work and leave
I.M. with Frankie, who “hit the baby hard” and would “throw the baby in the room with
no light, [with a] blanket covering the window, and leave the baby in there until it was
time to go get [mother] from work.” Garcia claimed Frankie did not change I.M.’s diaper
until just before mother came home. Garcia testified that he told mother about Frankie’s
care of I.M, but mother did not believe him. Garcia told mother and Frankie they needed
3.
to move out because Frankie attacked him at one point. Garcia admitted smoking
marijuana with both mother and Frankie when I.M. was present.
Father’s mother, D.M. (paternal grandmother), a licensed vocational nurse,
testified that the reason she and father took I.M. to the Clinic rather than Dr. Garcia was
because of the severity of I.M.’s repeated rash and also because it was a weekend, the
only time father had visitation with I.M., and Dr. Garcia was not available. Paternal
grandmother informed the doctors treating I.M. that she had a primary care physician,
and the Clinic was aware of her other medications. Paternal grandmother also kept
mother informed when she took I.M. to the Clinic; the two worked well together in
dealing with the rash, which cleared up with proper treatment.
Father denied threatening, fighting, arguing with, or driving his vehicle towards
mother during parental exchanges of I.M. Father instead blamed Frankie with trying to
start fights with him. Father and I.M. had a restraining order against Frankie, who was to
remain a certain distance from them.
On October 7, 2013, the juvenile court ruled the department’s allegations had not
been proven. The juvenile court found I.M.’s rash, which she had for over a year,
occurred while she was in mother’s care, and father, with the help of paternal
grandmother, did the best he could under the circumstances. The juvenile court found
father had not assaulted or threatened mother, and found mother’s story “unbelievable.”
The dependency petition was dismissed.
Second Detention
A year later, on October 19, 2014, the department received a referral that mother
returned I.M. to father’s care with injuries to her face and neck.2 Father took I.M. to the
hospital for treatment. Mother attributed the injuries to I.M. falling out of her toddler
2 Mother now also had a son, S.M., who is not at issue here. We mention him only
when necessary for context.
4.
bed, an explanation the hospital social worker found inconsistent with the injuries. I.M.
told the social worker mother’s current boyfriend, Buddy, hit her in the head and gave her
“owies.” In addition, marijuana paraphernalia was found within I.M.’s reach at mother’s
residence. Mother claimed it belonged to Buddy.
On October 19, 2014, the police department issued a temporary restraining order
for father and I.M., to protect I.M. from mother due to I.M.’s unexplained injuries.
Mother’s other child, S.M. was also removed from her care and placed in a foster home.
In October, mother tested positive for opiates; Buddy and S.M. both tested positive for
marijuana.
On October 22, 2014, the department filed a section 300 petition on behalf of I.M.
and S.M. alleging mother failed to protect the children from physical harm. (§ 300, subd.
(b).)
On October 23, 2014, the juvenile court found a prima facie showing that I.M. fell
within the definition of section 300 and she was ordered to remain in father’s custody.
Jurisdiction
A jurisdiction hearing was held January 22, 2015, and the juvenile court found the
allegations of the petition true. I.M. was declared a dependent of the juvenile court.
Disposition
The report filed in anticipation of disposition recommended I.M. be declared a
dependent and placed with father, that father receive family maintenance services, and
that mother receive reunification services, which would include both participating in
coparenting classes.
A contested disposition was held March 26 and April 7, 2015. Paternal
grandmother testified that she helped care for I.M. since she was three months old.
Paternal grandmother was concerned about I.M.’s well-being while in mother’s care due
to previous abuse, specifically an incident in 2013 when I.M. was 17 months old, an
incident in June of 2014, and the current incident in October of 2014. The incident in
5.
June of 2014 was described as I.M. returning from a visit badly bruised. Paternal
grandmother and father called the police, who came and took pictures and said they
would forward them to Child Protective Services (CPS), but CPS did not follow up with
them. According to paternal grandmother, had mother and father not exchanged I.M., the
abuse while in mother’s care would not have been reported.
Father testified that I.M. had suffered no injuries while in his care, except she
bumped a table and got a minor bruise. In response, father called CPS and took her to the
hospital. Father testified that when he took I.M. to visit mother, her boyfriend Buddy, her
friend Chris, and former boyfriend Frankie had all threatened and harassed him.
Social Worker Shanekka Brown-Johnson (SW Johnson) testified she was mother’s
social worker when she was a dependent and had known her for several years. Three or
four other social workers had worked with mother when she was a dependent as well.
SW Johnson was assigned the case involving mother and both children in early 2015.
SW Johnson was not aware of the abuse that allegedly occurred in June of 2014, nor was
it investigated, as there was no referral made on it. SW Johnson recommended mother
receive “reunification style” services and father receive family maintenance services
because I.M. was attached to both parents. SW Johnson stated that, in the limited time
she had supervised visits between mother and I.M., mother’s interaction with I.M. was
“very appropriate.”
On April 30, 2015, the juvenile court ruled on the matter, stating it knew mother
because she was a dependent and it knew “the whole history between mother and
[father].” The juvenile court did not think mother abused I.M., but also did not think
mother protected I.M. from “the abusers.” The juvenile court considered various options
and, after argument, adjudged I.M. a dependent, placed her with father, and ordered
father be given family maintenance services. As for mother, the juvenile court granted
supervised visitation and ordered “some services … [b]ut not services designated to
reunify or place [I.M.] back with mom.” A three-month review hearing was set.
6.
Family Maintenance Review
On August 7, 2015, the department filed a status review report in anticipation of a
section 364 family maintenance review hearing. The report stated father was employed,
I.M. was current on her immunizations, she had no outstanding medical or dental issues,
and she was developmentally on target. Father and mother were participating in
coparenting classes. The class instructor provided an update stating mother was
participating in class and completed her homework. Father had not completed the
majority of his homework and was disruptive and inattentive in class. On July 30, 2015,
the instructor stated that, if father’s behavior continued, he would be dropped from the
class.
The department recommended I.M. remain a dependent, that father continue to
receive family maintenance services, and mother continue to receive family reunification
services.3
Contested Maintenance Review Hearing
A contested three-month maintenance review hearing was held September 24,
2015, and continued numerous times. Social Worker Micky Vang (SW Vang), who had
been assigned the case three months earlier, testified I.M. was “very, very close” to father
and the two had a “good and strong bond and relationship with one another.” Father was
currently employed full time and paternal grandmother supervised I.M. while father
worked.
SW Vang testified she recently received a positive report from the coparenting
class instructor regarding father’s class performance. Father completed the department’s
program, including all of his classes and counseling. According to SW Vang, father
achieved the goals set out for him in the department’s case plan; he demonstrated
3 At disposition, the juvenile court had specifically stated that the services mother
was to receive were not for reunification purposes.
7.
adequate parenting skills to ensure I.M.’s well-being and safety; he understood and met
I.M.’s individual needs; and he ensured I.M. was consistently taken to her medical
appointments. Based on SW Vang’s home visits with father, she had no concerns for
I.M. in father’s care. In addition, I.M. had “tremendous” family support in father’s home.
SW Vang arranged visits for I.M. between mother and father, and she described
paternal grandmother as very helpful in facilitating the visits. Paternal grandmother and
father were flexible and willing to change hours and days of visits, but mother still
missed several visits. Although SW Vang had not personally witnessed any conflicts
between mother and father in the relatively short time she was assigned the case, she
recommended services be continued for both mother and father in order to “build better
communication” between the two so they could better serve I.M. SW Vang opined it
would be detrimental to I.M. to dismiss the case at this point.
SW Vang testified the department wanted mother to have unsupervised visitation
before recommending dismissal of dependency. However, the department had ongoing
concerns about mother’s boyfriend Buddy’s substance abuse. In June of 2015, while
mother’s son S.M. was a dependent, both S.M. and Buddy tested positive for
methamphetamine. Mother also tested positive for opiates during this same time period.
SW Vang was not certain whether mother had a prescription causing the test results.
The coparenting class instructor testified father actively participated in class and
shared experiences relevant to the course material. While mother and father did not want
to work together at first, they had been working together during family activities. The
instructor testified that I.M. participated in the program with both parents, and she did not
see any negative behavior, conflict or arguments between mother and father that would
negatively impact the child. Father participated in all 14 class sessions; mother missed
two or three sessions, but was able to make up the missed course work.
Paternal grandmother testified I.M. and father had been living with her, her
husband and daughter permanently since October 2014. If dependency jurisdiction was
8.
terminated for I.M., paternal grandmother was willing to supervise visits between mother
and I.M., as she had done in the past.
Father’s counsel argued the juvenile court should terminate dependency over I.M.
and order full custody to father because the department failed to establish that the
conditions which brought I.M. under dependency jurisdiction were likely to exist if
supervision was withdrawn.
On October 19, 2015, in explaining its tentative ruling to continue dependency, the
juvenile court stated it had reviewed the case from the beginning and was “pretty familiar
with it.” It then expressed its concerns, stating:
“Going back to 2013 when all that business is going on with [I.M.], one
thing I took away from that is that the parents were not working together
very well. And that actually continued from the very beginning. I know
that there was later allegations in 2014 – and let me just find something in
my notes. Dr. Garcia[4] made a statement, it’s in one of the reports, that he
was tired of the parents accusing each other of abusing [I.M.]. And his
opinion was that neither parent should have custody of [I.M.]. So I mean,
when I come to my own opinion that the parents were not, you know, co-
parenting very well, I don’t think it’s just my opinion. Pretty much that
opinion was shared by others including Dr. Garcia, so I have reviewed the
entire case .… Dad has custody, mom has supervised visits at [the
department]. They have completed services. They completed the co-
parenting class. You know, honestly, it’s kind of disappointing to me that
after all this time, going back to 2013 that the co-parenting class
completion of that was not very stellar, lack of a better word. In other
words, dad, you know, he had to be encouraged to do his homework, get off
his phone.
“There was testimony regarding how the parents were interacting. I
mean, sure they completed it. I don’t know if they learned anything from
it, quite honestly. And where are we today? We are still at supervised
visits at the Department. They haven’t even had a visit outside of the
Department. I haven’t heard a plan for how they are going to do
exchanges, how they will cover medical information, haven’t heard any of
4 The child’s pediatrician.
9.
that. And I am really afraid based on the history of the case it will end up
right where we were, beginning.
“I agree with [mother’s counsel]. I remember what he told me
before we continued the case is that these parents were young. They
haven’t gotten to the point where they need to be and I agree with that after
I reviewed the case on my own.… I think honestly that if I were to dismiss
it today it’s likely that these things, they’re going to continue. So I am
inclined to follow the recommendation … the recommendation is to
continue [family maintenance]. It doesn’t necessarily have to be six
months. I can set a six-month and three-month review. I want to see … a
plan for supervised visits perhaps maybe working into unsupervised. I
don’t know if that is going to be possible because of mom’s situation .… I
want to see you guys co-parent. That means you guys will have to put
down whatever issues you have, any ill will if you want to call it that, bury
that stuff and have to agree … to talk to each other and do it in a
responsible way to raise up [I.M.]. You don’t have a choice, you will have
to do that. And you will have to act appropriately towards each other.”
Father’s counsel argued to terminate dependency, stating there was no safety issue
as to I.M. while in father’s care and as long as mother continued to have supervised
visits. In essence, father’s counsel argued it was not “fair to hold the father responsible
for mother’s bad choices and in the meantime he is having to continue to come to court.”
After a number of continuances, on November 19, 2015, the juvenile court
continued both dependency jurisdiction and family maintenance services for father.5
Father appeals from the status review hearing orders.
DISCUSSION
Father contends the order continuing jurisdiction was an abuse of the juvenile
court’s discretion. In order to understand father’s argument, we first summarize the
applicable statutes.
5 Because of the numerous continuances, the findings and order after hearing filed
on November 19, 2015, refers to the hearing as a six-month review hearing and a 12-
month permanency hearing was set for April of 2016.
10.
Applicable Statutes
A. Statutes Governing Placement of the Child at Disposition
Once the juvenile court has assumed jurisdiction, the court must hold a disposition
hearing to determine, among other things, an appropriate placement for the child. The
court generally has three choices. First, if the court determines the child would not be at
substantial risk of physical or emotional harm if left in the custody of the offending
parent or parents, the court may leave the child in parental custody and “order family
maintenance services to ameliorate the conditions that made the child subject to the
court’s jurisdiction.” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 302; see
§ 362, subd. (c).)
If, however, the court determines the child would be at substantial risk of physical
or emotional harm if left in parental custody, section 361.2 requires the court to
“determine whether there is a parent of the child, with whom the child was not residing at
the time that the events or conditions arose that brought the child within the provisions of
Section 300, who desires to assume custody of the child.” (§ 361.2, subd. (a).) If such a
parent exists—referred to as the “noncustodial” parent—the court is then required to
place the child with that parent unless if finds that doing so would be detrimental to the
physical or emotional well-being of the child.
If the court places the child with a noncustodial parent under section 361.2,
subdivision (a), it has the option to either terminate jurisdiction with a custody order in
favor of the noncustodial parent or retain jurisdiction and order services to either or both
parents. The first option is set forth in section 361.2, subdivision (b)(1), which states: If
the court places the child with a noncustodial parent, it may “[o]rder that the parent
become legal and physical custodian of the child. The court may also provide reasonable
visitation by the [parent from whom the child was removed]. The court shall then
terminate its jurisdiction over the child. The custody order shall continue unless modified
11.
by a subsequent order of the superior court. The order of the juvenile court shall be filed
in any domestic relation proceeding between the parents.”
The second option is set forth in section 361.2, subdivision (b)(3)6, which states:
If the court places the child with a noncustodial parent, it may “[o]rder that the parent
assume custody subject to the supervision of the juvenile court. In that case the court may
order that reunification services be provided to the parent ... from whom the child is being
removed, or the court may order that services be provided solely to the parent who is
assuming physical custody in order to allow that parent to retain later custody without
court supervision, or that services be provided to both parents, in which case the court
shall determine, at review hearings held pursuant to Section 366, which parent, if either,
shall have custody of the child.”
Finally, if the court determines removal from parental custody is necessary and
there is no noncustodial parent willing to assume custody, the court must order the child
under the supervision of the social worker, who is then responsible for selecting an
appropriate out-of-home placement. (See § 361.2, subd. (e).)
B. Six-month Review Hearing
“If a child has been declared a dependent of the juvenile court and placed under
court supervision, the status of the child must be reviewed every six months.” (Bridget A.
v. Superior Court, supra, 148 Cal.App.4th at p. 303.) The applicable standards at the six-
month review hearing differ depending on the child’s placement.
Section 364 governs when “a child under the supervision of the juvenile court ... is
not removed from the physical custody of his or her parent or guardian ....” (§ 364, subd.
(a).) At a section 364 six-month review hearing, the court is required to “determine
whether continued supervision is necessary.” (§ 364, subd. (c).) Termination of
6 Section 361.2, subdivision (b)(2) provides the court a third option that is not
relevant here.
12.
jurisdiction is required “unless the social worker or his or her department establishes by a
preponderance of evidence that the conditions still exist which would justify initial
assumption of jurisdiction under Section 300, or that those conditions are likely to exist if
supervision is withdrawn.” (Ibid.)
Section 366.21, subdivision (e) governs when a child has been removed from the
custody of a parent. If the child has been placed in out-of-home care, section 366.21,
subdivision (e)(1) requires the court to return the child to parental custody at the six-
month hearing unless the social worker establishes “by a preponderance of the evidence
that the return of the child to his or her parent ... would create a substantial risk of
detriment to the safety, protection, or physical or emotional well-being of the child.”
The statute also includes a separate paragraph describing the procedures used at a
six-month review hearing for a child who was removed from a custodial parent and
placed with a noncustodial parent pursuant to section 361.2: “If the child had been
placed under court supervision with a previously noncustodial parent pursuant to Section
361.2, the court shall determine whether supervision is still necessary. The court may
terminate supervision and transfer permanent custody to that parent, as provided for by
paragraph (1) of subdivision (b) of Section 361.2.” (§ 366.21, subd. (e)(6).)
Thus, under section 366.21, subdivision (e)(6), the standard applicable to a six-
month review hearing for a child placed with a noncustodial parent is similar to the
standard applicable to a section 364 six-month review hearing for a child who was not
removed from a custodial parent. In both instances, the court must “determine whether
continued supervision is necessary.” (§ 364, subd. (c); see also § 366.21, subd. (e)(6)
[“whether supervision is still necessary”].) But, under section 364, subdivision (c), the
court must also determine whether the conditions first establishing jurisdiction still exist,
a requirement not included under section 366.21, subdivision (e)(6). (In re Janee W.
(2006) 140 Cal.App.4th 1444, 1451.) “When deciding whether to terminate jurisdiction
[over a child placed with a noncustodial parent], the court must determine whether there
13.
is a need for continued supervision, not whether the conditions that justified taking
jurisdiction in the first place still exist, as required under section 364.” (Id. at p. 1451;
see also In re Sarah M. (1991) 233 Cal.App.3d 1486, 1497 [when deciding whether to
terminate jurisdiction over a child placed with noncustodial parent, juvenile court is not
required to inquire whether conditions that originally supported jurisdiction still exist],
disapproved on other grounds in In re Chantal S. (1996) 13 Cal.4th 196, 204.)
Analysis
At the disposition hearing, the juvenile court ordered I.M. removed from mother’s
physical custody and placed with father. At issue here is whether the review hearing is
held under the standards of section 364, subdivision (c) or section 366.21, subdivision
(e)(6). The question hinges on whether father is considered a custodial or noncustodial
parent.
Father claims he was a “custodial” rather than “non-custodial” parent because I.M.
resided with him when she suffered non-accidental injuries caused by mother, which
gave rise to the dependency jurisdiction. Father argues the more onerous statute, section
364, subdivision (c), was applicable and required the additional determination by a
preponderance of the evidence that the conditions that triggered jurisdiction still existed.
According to father, since those conditions no longer existed, jurisdiction should have
been dismissed.
We disagree with father, and find section 366.21, subdivision (e)(6) applicable
here. Mother and father shared a previously implemented custody order, so it can be
argued that neither parent was, per se, the “noncustodial” parent as described in section
361.2, subdivision (a). However, the parent who has physical custody of the child at the
time of the events that gave rise to the petition, here mother, “is often referred to as the
‘custodial parent.’” (In re Adrianna P. (2008) 166 Cal.App.4th 44, 55, fn. 5.) That
would make father the “noncustodial” parent in this case, and the juvenile court was
required only to determine whether its supervision was still necessary in order to continue
14.
dependency, not whether the conditions which justified initial assumption of jurisdiction
still existed.
Our task is then to determine whether there was sufficient evidence to support the
juvenile court’s order continuing dependency due to the need for continued supervision.
(In re Sarah M., supra, 233 Cal.App.3d at p. 1498.) The record supports the juvenile
court’s ruling. While both parents clearly loved I.M., they were still not able to
adequately coparent I.M. As noted by the juvenile court, trigger issues of parent
exchanges and how to manage medical information had still not been discussed. The
juvenile court’s concern that the situation could easily regress to the way it had been at
the “beginning” is evident from the record before it.
DISPOSITION
The orders are affirmed.
_____________________
FRANSON, J.
WE CONCUR:
_____________________
HILL, P.J.
_____________________
McCABE, J.*
* Judge of the Merced Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
15.
| {
"pile_set_name": "FreeLaw"
} |
[Cite as In re J.P., 2019-Ohio-4972.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
Hon. John W. Wise, P. J.
IN THE MATTER OF: Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
J.P. Case No. 2019CA00119
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
2018JCV00378
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 2, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES B. PHILLIPS AARON KOVALCHIK
STARK COUNTY JFS 116 Cleveland Avenue, NW
402 2nd Street, SE Suite 808
Canton, Ohio 44702 Canton, Ohio 44702
Stark County, Case No. 2019CA00119 2
Wise, P. J.
{¶1} Appellant-Father C.P. appeals the judgment of the Stark County Common
Pleas Court, Juvenile Division, awarding permanent custody of his minor child J.P. to
Appellee Stark County Department of Job and Family Services.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant-Father C.P. and Mother S.W. are the parents of the minor
children, K.P. (DOB 02/19/08), J.P. (DOB 05/13/17) and D.P. (DOB 5/13/17).
{¶3} On April 12, 2018, SCJFS filed a complaint alleging the dependency and/or
neglect of J.P. (DOB 05/13/17). The allegations of the complaint centered on both
parent's persistent drug use, poor home conditions, and medical neglect of the child. The
SCJFS had attempted to work voluntarily with the family in a non-court case since August
of 2017. Those efforts were unsuccessful, and the complaint was filed.
{¶4} On April 13, 2018, a shelter care hearing was held. The parents stipulated
to probable cause. Based on the stipulations, the trial court found that probable cause
existed for the involvement of SCJFS and granted emergency temporary custody to the
Agency.
{¶5} On May 7, 2018, a CASA report was filed, and on May 9, 2018, an initial
case plan was filed.
{¶6} On July 5, 2018, the parents failed to appear at an adjudication hearing.
Based on the evidence presented, the trial court found the minor children to be dependent
and placed them into the temporary custody of SCJFS. The trial court approved and
adopted the case plan and found that SCJFS had made reasonable efforts to prevent
the need for the continued removal of the children from the home.
9tark County, Case No. 2019CA00119 3
{¶7} On October 9, 2018 and March 8, 2019, the trial court reviewed the case.
The trial court approved and adopted the case plan and found that SCJFS had made
reasonable efforts to prevent the need for the continued removal of the children from the
home. The trial court also found that compelling reasons existed to preclude a request
for permanent custody only at the October 9, 2018 hearing.
{¶8} On February 11, 2019, SCJFS filed a motion seeking permanent custody of
the children. The original permanent custody hearing date had to be continued due to the
serious illness of the ongoing caseworker.
{¶9} The Guardian ad Litem for J.P. submitted a report stating that J.P. was
adjusted to her foster family and doing well and recommending that J.P. be placed into the
permanent custody of SCJFS.
{¶10} On July 2, 2019, the trial court heard evidence on the motion seeking
permanent custody of the minor children. Tr. at 3-45. At the hearing, SCJFS presented
evidence regarding Appellant-Father and K.P., J.P., and D.P. Tr. at 10-20, 20-33.
Specifically, Caseworker Sue Snyder testified that Appellant had not completed his case
plan, had not significantly reduced the risk he posed to his children, had abandoned his
children, and that Appellant was currently serving a four-year prison sentence for
Felonious Assault and Domestic Violence against the children's mother. Tr. at 10-20. Ms.
Snyder also testified that permanent custody was in the best interests of the children.
Tr. at 20-33.
{¶11} Appellant Father also testified in the Best Interest Hearing. Tr. at 36-42. He
stated that he is doing well in prison, that he is sober and is taking GED classes. Id.
Appellant admitted to currently serving a four-year prison sentence and not visiting his
9tark County, Case No. 2019CA00119 4
children in over 90 days before he was arrested on his current charge. Tr. at 37, 41.
Appellant also admitted that if he were granted an early judicial release, he would be
transferred to SRCCC for several more months, and children are not allowed at that
facility. Tr. at 41.
{¶12} Mother was present at the hearing, stipulated to the granting of permanent
custody, and signed a stipulation form voluntarily relinquishing her parental rights.
{¶13} The Guardian ad Litem for the children submitted a report recommending
that permanent custody of the children be granted to SCJFS. The trial court took the
matter under advisement. Tr. at 45.
{¶14} On July 8, 2019, the trial court issued its findings of fact granting permanent
custody of K.P., J.P. and D.P. to SCJFS and terminating Appellant's parental rights.
Specifically, the trial court found that, despite reasonable efforts by SCJFS, the minor
children could not and should not be placed with Appellant within a reasonable amount
of time, Appellant had abandoned the children, and the grant of permanent custody was
in the children’s best interest.
{¶15} Appellant-Father now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶16} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILDREN CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT AT THIS
TIME OR WITHIN A REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶17} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING
9tark County, Case No. 2019CA00119 5
OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
I.
{¶18} Appellant-Father argues that the trial court’s finding that J.P. could not be
placed with him within a reasonable period of time was against the manifest weight and
sufficiency of the evidence.
{¶19} A trial court's decision to grant permanent custody of a child must be
supported by clear and convincing evidence. The Ohio Supreme Court has defined “clear
and convincing evidence” as “[t]he measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty, as required beyond a reasonable doubt, as in criminal cases.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954); In re: Adoption of Holcomb,
18 Ohio St.3d 361, 481 N.E.2d 613 (1985).
{¶20} In reviewing whether the trial court based its decision upon clear and
convincing evidence, “a reviewing court will examine the record to determine whether the
trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State
v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60 (1990); See also, C.E. Morris Co. v.
Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). If the trial court's judgment
is “supported by some competent, credible evidence going to all the essential elements
of the case,” a reviewing court may not reverse that judgment. Schiebel, 55 Ohio St.3d at
74, 564 N .E.2d 54.
9tark County, Case No. 2019CA00119 6
{¶21} Moreover, “an appellate court should not substitute its judgment for that of
the trial court when there exists competent and credible evidence supporting the findings
of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses and the
weight to be given the evidence are primarily for the trier of fact. As the court explained
in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), “The
underlying rationale of giving deference to the findings of the trial court rests with the
knowledge that the trial judge is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.”
{¶22} Further, deferring to the trial court on matters of credibility is “crucial in a
child custody case, where there may be much evident in the parties' demeanor and
attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415,
419, 674 N.E.2d 1159 (1997); see, also, In re: Christian, 4th Dist. Athens App. No.
04CA10, 2004–Ohio–3146; In re: C. W., 2nd Dist. Montgomery App. No. 20140, 2004–
Ohio–2040.
{¶23} Pursuant to §2151.414(B), the court may grant permanent custody of a child
to the movant if the court determines “that it is in the best interest of the child to grant
permanent custody to the agency that filed the motion for permanent custody and that
any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
twenty-two-month period, or has not been in the temporary custody of one
9tark County, Case No. 2019CA00119 7
or more public children services agencies or private child placing agencies
for twelve or more months of a consecutive twenty-two-month period if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an equivalent agency in
another state, and the child cannot be placed with either of the child's
parents within a reasonable time or should not be placed with the child's
parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who
are able to take permanent custody.
(d) The child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for twelve or
more months of a consecutive twenty-two-month period, or the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period and, as described in division (D)(1) of
section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been adjudicated an
abused, neglected, or dependent child on three separate occasions by any
court in this state or another state.
9tark County, Case No. 2019CA00119 8
{¶24} Revised Code §2151.414(E) sets forth the factors a trial court must consider
in determining whether a child cannot or should not be placed with a parent within a
reasonable time. If the court finds, by clear and convincing evidence, the existence of any
one of the following factors, “the court shall enter a finding that the child cannot be placed
with [the] parent within a reasonable time or should not be placed with either parent”:
(1) Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parent to remedy the problem that initially caused the child to
be placed outside the home, the parents have failed continuously and
repeatedly to substantially remedy the conditions that caused the child to
be placed outside the child's home. In determining whether the parents
have substantially remedied the conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
***
(10) The parents has abandoned the child.
***
(16) Any other factors the court considers relevant.
{¶25} Upon review, the trial court’s finding that J.P. could not be placed with
Appellant-Father within a reasonable period of time was not against the manifest weight
or sufficiency of the evidence. In concluding that the child cannot or should not be placed
9tark County, Case No. 2019CA00119 9
with Appellant within a reasonable period of time, there was enough evidence for the trial
court to rely upon R.C. §2151.414(E)(1). Caseworker Snyder testified that Appellant was
currently serving a four year prison term for assaulting the child’s mother. Tr. at 17.
Appellant-Father failed to complete his drug and alcohol assessment. Tr. at 14-15.
Appellant-Father failed to keep the home in a clean condition prior to the initiation of the
court case. Id. Subsequent to the filing of the court case, Appellant failed to engage in
recommended substance abuse treatment. Tr. at 16. Appellant tested positive for alcohol
and marijuana throughout the pendency of the cases. Tr. at 16. Appellant failed to
complete a parenting assessment with Northeast Ohio Behavioral Health as
recommended. Tr. at 15-16. Appellant did not complete his case plan or reduce the risks
that led to the involvement of the Agency in this case. Tr. at 16-17.
{¶26} Caseworker Snyder further testified that Appellant also failed to visit the
children prior to his incarceration. Tr. at 16-17. Appellant’s last visit with his children was
on June 6, 2018. Tr. at 16. More than 90 days lapsed between June 6, 2018, and the
July 2, 2019, the date of the trial. Appellant confirmed the testimony of the case worker.
Tr. at 41.
{¶27} For the aforementioned reasons, there was more than enough evidence for
the trial court to conclude that J.P could not and should not be replaced with Appellant
within a reasonable amount of time.
{¶28} Appellant's first assignment of error should be overruled.
II.
{¶29} In his second assignment of error, Appellant-Father argues that the finding
that permanent custody was in the best interest of J.P. was against the manifest weight
and sufficiency of the evidence.
9tark County, Case No. 2019CA00119 10
{¶30} In determining the best interest of the child at a permanent custody hearing,
R.C. §2151.414(D) mandates the trial court must consider all relevant factors, including,
but not limited to, the following: (1) the interaction and interrelationship of the child with
the child's parents, siblings, relatives, foster parents and out-of-home providers, and any
other person who may significantly affect the child; (2) the wishes of the child as
expressed directly by the child or through the child's guardian ad litem, with due regard
for the maturity of the child; (3) the custodial history of the child; and (4) the child's need
for a legally secure permanent placement and whether that type of placement can be
achieved without a grant of permanent custody.
{¶31} Because custody issues are some of the most difficult and agonizing
decisions a trial judge must make, he or she must have wide latitude in considering all
the evidence and such a decision must not be reversed absent an abuse of discretion.
Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159, citing Miller v. Miller
(1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. As an appellate court, we are not the trier
of fact; instead, our role is to determine whether there is relevant, competent, and credible
evidence upon which the factfinder could base his or her judgment. Tennant v. Martin–
Auer, 188 Ohio App.3d 768, 936 N.E.2d 1013, 2010–Ohio–3489, ¶ 16, citing Cross Truck
v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911.
{¶32} As noted in our recitation of the facts, the trial court conducted the
permanent custody trial in this matter on July 2, 2019. During the best interest portion of
the trial, Caseworker Snyder testified that J.P., who is now 2 years old and was 11 months
old at the time of removal from the home, had a flat spot on her head due to neglect at the
time of removal which necessitated a cranial helmet. Id.
9tark County, Case No. 2019CA00119 11
{¶33} Caseworker Snyder further testified that the foster parents are meeting the
medical needs of the children. Tr. at 25. She stated that the children have been with their
foster family since September, 2018, that they are bonded with the foster family and the
foster family wishes to adopt the children. Tr. at 26-27, 31. Finally, she stated that it was
her opinion that permanent custody would be in the children’s best interest as the children
would have stability and permanence. Tr. at 28-32.
{¶34} Additionally, the Guardian ad Litem for the children also agreed that
permanent custody is in the best interests of the children.
{¶35} Based on the foregoing, we find that the trial court’s finding that permanent
custody was in the best interest of J.P. was supported by the evidence.
{¶36} Appellant’s second assignment of error is overruled.
{¶37} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Stark County, Ohio, is affirmed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
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382 F.2d 598
PHILADELPHIA MOVING PICTURE MACHINE OPERATORS' UNION, LOCAL NO. 307, I. A. T. S. E., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 16119.
United States Court of Appeals Third Circuit.
Argued May 2, 1967.
Decided August 1, 1967.
James J. Leyden, Philadelphia, Pa. (Herbert G. Keene, Jr., Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., on the brief), for petitioner.
Warren M. Davison, Atty., N.L.R.B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Linda R. Sher, Atty., N.L.R.B., on the brief), for respondent.
Before McLAUGHLIN, HASTIE and SEITZ, Circuit Judges.
OPINION OF THE COURT
HASTIE, Circuit Judge.
1
In this case the National Labor Relations Board has found that Philadelphia Motion Picture Machine Operators' Union, Local No. 307, I.A.T.S.E., has violated section 8(b) (1) (A) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(b) (1) (A), by expelling Velio Iacobucci from union membership because he had caused another operator, who was not a union member, to file with the Board an unfair labor practice charge against the union. The union has asked us to review and set aside that decision and the Board has asked that we enforce its corrective order.
2
Within the union four specific charges were brought against Iacobucci. The first three admittedly stated grounds justifying expulsion from membership. The fourth charge was that Iacobucci had caused one Philip Cusat, a non-union operator, to file an unfair labor practice charge with the Board alleging unlawful union conduct. A local trial committee found Iacobucci guilty of all four charges and recommended to the membership that he be expelled. The membership voted to expel him as recommended. Iacobucci then initiated the present unfair labor practice proceeding.
3
The trial examiner, whose rulings were adopted by the Board, concluded that the union had violated section 8(b) (1) (A) in that it had interfered with an employee's "guaranteed right to invoke the Board's processes in order to determine whether * * * [the union] was engaged in violations of the Act", citing Local 138, International Union of Operating Engineers and Charles S. Skura, 1964, 148 N.L.R.B. 679 and Roberts v. NLRB, 1965, 121 U.S.App.D.C. 297, 350 F.2d 427. The Board ordered the union to cease and desist from such practices and to reinstate Iacobucci.
4
As briefed and argued, this case presents the question whether a union commits an unfair labor practice when it discharges a member on the basis of four charges, three of which are valid grounds for expulsion and the fourth an improper ground under the Act. But, as the union points out, there is also before us the question whether expulsion upon the fourth ground alone would violate the Act.
5
We first consider the causative relation between the fourth charge and Iacobucci's expulsion. The union points out that, after Iacobucci had complained to the Board, the union's local trial committee formally asserted that "even if this [fourth] charge had not been filed, the Report and Recommendation of the Trial Committee would have been the same". But whatever significance this after-the-event self-serving declaration may have as an indication of the thinking which underlay the committee's recommendation, it affords no justification for assuming that the membership viewed and treated the fourth charge as surplusage. The membership voted expulsion pursuant to a recommendation which set out four specifications of misconduct. Nothing was done to indicate that this action was based upon any specification more or less than upon any other. Accordingly, the Board properly concluded and ruled that Iacobucci's expulsion was motivated and caused in part by the fourth specification. Certainly, the record would not support a finding that the membership would have reached the same conclusion in the absence of the fourth specification.
6
In other cases it has been held that an employer commits an unfair labor practice when he dismisses an employee partly on valid grounds and partly for a cause unlawful under the Act. NLRB v. Barberton Plastics Products, Inc., 6th Cir., 1965, 354 F.2d 66; NLRB v. Great Eastern Color Lithographic Corp., 2d Cir., 1962, 309 F.2d 352, cert. denied 373 U.S. 950, 83 S.Ct. 1680, 10 L.Ed.2d 705. By parity of reasoning, the same rule should and does apply to union action in dismissing a worker from membership.
7
Our conclusion on this first point makes it necessary that we also decide the second point, whether a union violates section 8(b) (1) (A) by expelling a member for causing a non-member to file an unfair labor practice charge alleging improper union behavior. Section 8(b) (1) (A) reads in part:
8
"It shall be an unfair labor practice for a labor organization or its agents —
9
(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein * * *."
10
Thus, this section is applicable to union interference with the right which section 7 confers on employees "to refrain from any or all * * * [concerted] activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a) (3)".
11
Although section 7 makes no specific mention of the right to file unfair labor practice charges, we have recently expressed the view that section 8(b) (1) (A) protects an employee's "right to file charges * * * limited to complaints that the union has in some way interfered with the sort of activity that is described in" section 7. Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO v. NLRB, 3d Cir., 1967, 379 F.2d 702. To discipline an employee for causing another employee to file an unfair labor practice charge is one potentially effective way to discourage such filings. Moreover, while the disciplinary action sanctioned in the Industrial Union case merely discouraged premature complaint to the Board without first resorting to available remedies within the union, the punishment of Iacobucci had no such limited impact, but rather tended to discourage similar complaints under any circumstances.
12
It remains to examine the allegations of the complaint filed with the Board by Cusat in order to determine whether the facts alleged therein, if true, would constitute a deprivation of rights contained in section 7. The complaint reads in part as follows:
13
"Since on or about June 17, 1962, and at all times thereafter, the abovenamed labor organization, by its officers, agents and representatives, has performed, maintained and otherwise given effect to an arrangement, understanding or practice with motion picture exhibitors in Philadelphia, Pennsylvania, including, but not limited to Stanley Warner Corporation and A. M. Ellis Theatre Company, requiring membership in or clearance by said labor organizations as a condition of employment of employees hired by or who performed work by said exhibitors.
14
"Pursuant to the arrangement, understanding or practice referred to above, the above-named labor organization, on or about December 15, 1962 refused to grant clearance to Philip Cusat, a non-member and an applicant for employment with A. M. Ellis Theatre Company."
15
On its face, this complaint alleges the use of an illegal closed shop agreement between the union and motion picture exhibitors to achieve a discriminatory denial of employment. Such conduct is one of the most familiar and clearly unlawful devices for encouraging union membership and interfering with the section 7 right of employees to refrain from engaging in concerted activities. NLRB v. Philadelphia Iron Works, 3d Cir., 1954, 211 F.2d 937; NLRB v. Gottfried Baking Co., 2d Cir., 1954, 210 F.2d 772.
16
Nor can it be maintained that the union's conduct in expelling Iacobucci is protected by the proviso to section 8 (b) (1) (A), which permits unions to promulgate rules relating to the acquisition and retention of membership. In the Industrial Union case we recognized "that the proviso does not enable a union to promulgate any rule it desires and hinge membership upon adherence", specifically citing as an example a union rule subjecting "a member to dismissal * * * for filing charges with the Board against the union alleging conduct which, if proved, would constitute an unfair labor practice". 379 F.2d at 702.
17
Finally, in our view, union conduct in expelling a member for causing it to be charged with discriminatorily debarring a non-union worker from employment is not entitled to such protection as the Supreme Court accorded union discipline of a member for crossing the union's lawful picket line in NLRB v. Allis-Chalmers Mfg. Co., 1967, 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123. In that case the Court characterized the expulsion as "reasonable discipline of members" for strike breaking. In contrast, we think expulsion for causing an invocation of the Board procedures which Congress has provided for correcting union misconduct cannot properly be characterized as "reasonable discipline" of a union member.1 For the enforcement of the Act is frustrated or at least impeded by such expulsion.
18
For these reasons we conclude that union action in expelling a member, when motivated in part, as in this case, by his action in causing the union to be charged before the Board with discriminatorily depriving a non-member of employment, violates section 8(b) (1) (A).
19
Accordingly, the Board's order will be enforced and the union's petition will be denied.
Notes:
1
Whether this conclusion would cover a filing in bad faith, a deliberate abuse of the Board's process, we need not consider since nothing of that sort appears here. We also emphasize again that we are dealing with an unqualified discouragement of charges against the union, not a reasonable union effort to require members to resort to internal remedies before going to the Board
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688 F.2d 836
U. S.v.Thornton
81-6901
UNITED STATES COURT OF APPEALS Fourth Circuit
9/2/82
1
D.Md.
AFFIRMED
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652 So.2d 254 (1994)
Dennis Ray TIERCE
v.
Reba GILLIAM, as executrix of the Estate of John R. Tierce, deceased.
1931543.
Supreme Court of Alabama.
December 16, 1994.
*255 Borden M. Ray, Jr. of Ray, Oliver & Ward, Tuscaloosa, for appellant.
Robert F. Prince and Suzanne H. Mills, Tuscaloosa, for appellee.
HOUSTON, Justice.
Irene Elizabeth Batchelder and William Copeland Tierce were married in November 1942. In February 1944, William left the United States for military service in Italy. William returned to the United States in December 1945 and learned that Irene was approximately six months pregnant. On February 2, 1946, William sued for a divorce on the ground of adultery. Shortly thereafter, Irene and William were divorced.
At the time of the divorce, Irene was pregnant with the defendant, Dennis Ray Tierce. The issue of Dennis Ray's paternity was not adjudicated during the divorce proceedings. On April 4, 1946, Dennis Ray was born; his birth certificate listed William as the father.
William remarried; he and his second wife, Grace Clements Tierce, had five children Brenda T. Scrivner, Shelia T. Ellis, Howard W. Tierce, Cynthia Tierce, and Edna Tierce. William died in December 1972. Approximately 17 years later, in December 1989, William's father, John R. Tierce ("the testator"), died. The executors of the testator's estate, Reba Gilliam and John D. Tierce, filed a routine accounting of the estate and submitted a list of 10 heirs, which named Dennis Ray as the son of William and as a possible heir to the estate. Forty-five years after Dennis Ray's birth and over 20 years after William's death, Shelia T. Ellis sued for a declaratory judgment, asking the court to determine that Dennis Ray was not the son of William and, therefore, that he was not entitled to a share of the estate. The trial court ruled that Dennis Ray was not the biological son of William and, therefore, that he was not an heir to the estate. Dennis Ray appealed; we reversed the judgment and remanded the case, holding that Shelia's action was barred by the 20-year rule of repose. See Tierce v. Ellis, 624 So.2d 553 (Ala.1993).
Thereafter, the executors of the testator's estate filed a "motion for declaratory judgment," seeking a determination as to whether our holding in Tierce v. Ellis required that Dennis Ray be designated as a distributee under the testator's will. The trial court ruled that Dennis Ray was not entitled to a share of the estate, finding that the testator had never recognized Dennis Ray as his grandson and that he had never evidenced an intention of including Dennis Ray as a distributee under his will. It is from that judgment that Dennis Ray now appeals. We affirm.
The testator's will provided in pertinent part as follows:
"(c) Upon the death of my wife, I give, devise and bequeath Share # 2 (and also Share # 1, if my wife has failed to exercise the power of appointment) unto the Trustees under that certain Trust Agreement dated the 26th day of February, 1975, in force and effect between me, as Grantor, and Lura G. Tierce and Reba T. Gilliam, as original Trustees thereunder. It is my intention that said residue of my estate shall merge with and become a part of the trust or trusts created by me during my lifetime and that the shares created thereof for the benefit of my children shall participate equally in the assets transferred hereunder by my will.
"(d) In the event that upon the death of my wife the trusts established under that certain Trust Agreement referred to in subparagraph [(c)] above of this Item of my Will shall not be in existence, then and in that event said residue of my estate shall be apportioned into so many equal shares as the number of my children then living or having died theretofore leaving lineal descendants who are then surviving. Each share so apportioned shall be delivered over to the child for whom it is set *256 aside, free from trust, the lineal descendants of any deceased child shall take in equal shares, per stirpes, the share to which the parent would have been entitled if living [sic]."
(Emphasis added.)
The trust agreement referred to in the will, and executed on the same day as the will, contained the following relevant provisions:
"2. Division of Corpus. The trust corpus shall be divided by the Trustees into equal shares, so as to provide one share for the primary benefit of each of Grantor's living children, namely Reba T. Gilliam, Eunice T. Lunsford, John D. Tierce, and Evelyn Oswalt, and one share for the descendants of Grantor's deceased son, William C. Tierce, namely: Brenda T. Scrivner, Shelia T. Ellis, Howard W. Tierce, Cynthia Tierce, and Edna Tierce. The share for the children of William C. Tierce, deceased, shall be divided so as to provide an equal share for each of said children of William C. Tierce, deceased. Each share shall thereafter constitute and be administered by the Trustees as a separate trust. The children and grandchildren of the Grantor herein named are hereinafter sometimes referred to collectively as primary beneficiaries and separately as primary beneficiary.
". . . .
"[3](c) Notwithstanding any of the provisions contained in this agreement to the contrary, these trusts shall terminate at such time as all of the primary beneficiaries over the age of twenty-one years shall agree in writing to such termination, whereupon the Trustees shall distribute the corpus and undistributed income to each of the primary beneficiaries."
(Emphasis added.)
Because the testator's wife had predeceased him, and because the trust agreement had been terminated by the primary beneficiaries under the trust before his death, the operative provision in the will required that the testator's residuary estate "be apportioned into so many equal shares as the number of [his] children then living or having died theretofore leaving lineal descendants who [were] then surviving." The trial court ruled that the term "lineal descendants" in the will was ambiguous, when considered in light of the circumstances surrounding Dennis Ray's birth and the testator's execution of the companion trust agreement. The trial court concluded that the testator could not have intended for Dennis Ray to share in his estate as a "lineal descendant."
Dennis Ray contended below, and he contends on appeal, that the term "lineal descendants" is not, on its face, ambiguous and that the effect of our holding in Tierce v. Ellis, supra, was to qualify him as a lineal descendant of the testator as a matter of law. He argues that the trial court erred in looking outside the "four corners" of the will to ascertain the testator's intent. The executors contend that the trial court correctly considered parol evidence to reveal and to clear up a latent ambiguity in their father's will. They agree with Dennis Ray's contention that the term "lineal descendants" is not, on its face, ambiguous. They maintain, however, that the term is rendered ambiguous by the provisions of their father's trust agreement and by the circumstances surrounding the birth of Dennis Ray.
As has been noted many times by this Court, the intention of the testator is always the polestar in the construction of wills, and the cardinal rule is to ascertain the intention of the testator and to give it effect if the intended effect is not prohibited by law. Tierce v. Macedonia United Methodist Church of Northport, 519 So.2d 451 (Ala. 1987). It is also well settled that in ascertaining the testator's intention, the trial court should consider the will as a whole and, if necessary to reveal and to clear up a latent ambiguity in a will, any relevant parol evidence surrounding the execution of the will. Fraley v. Brown, 460 So.2d 1267 (Ala.1984); Gafford v. Kirby, 512 So.2d 1356 (Ala.1987).
The pertinent facts surrounding Dennis Ray's birth and the testator's subsequent execution of his will and trust agreement set out above were either stipulated to by the parties or appear to be undisputed. No oral testimony was presented before the trial court; therefore, we review the judgment in *257 this case without any presumption in favor of the trial court's findings. Bownes v. Winston County, 481 So.2d 362 (Ala.1985). After carefully examining the record and the briefs of the parties, we conclude that the trial court did not err in considering parol evidence to construe the will and that the evidence supports the trial court's judgment.
We note initially that we agree with the parties that the term "lineal descendants" is not, on its face, ambiguous. In Wright v. City of Tuscaloosa, 236 Ala. 374, 379, 182 So. 72, 75-76 (1938), this Court stated:
"In 37 C.J. [at p.] 1262, the author defines the term Lineal Descendant as: `Direct descendant, but not brothers and sisters: one who is in the line of descent from a certain person: a term which is said to be synonymous with "issue."'
"`Descendant: One who is descended, as issue, lineally from another, however remotely, as a child, grandchild, great grandchildren.' Funk & Wagnalls New Standard Dictionary, 687.
"In the case of Culley et al. v. Elford, 187 Ala. 165, 65 So. 381 [(1914)], it was observed that (page 384) `heir or heirs of her body' [means] lineal descendants.
"`In its legal sense, as used in statutes, wills, deeds, and other instruments, "issue" means descendants; lineal descendants; offspring. [Citations omitted.]'"
In McCaleb v. Brown, 344 So.2d 485, 488 (Ala.1977), this Court, although stating that the terms "descendant" and "legal descendant" had no precise legal definition, found persuasive the definition of "descendant" contained in the fourth edition of Black's Law Dictionary as "[o]ne on whom the law has cast the property by descent." In Black's Law Dictionary (6th ed. 1990), the following definitions appear:
"Descendant. Those persons who are in the bloodstream of the ancestor. Term means those descended from another, persons who proceed from a body of another such as a child or grandchild, to the remotest degree; it is the opposite of `ascendants'.... In the plural, the term means issue, offspring or posterity in general. Also, all those to whom an estate descends, whether it be in a direct or collateral line from the intestate....
"Lineal descendant. One who is in the line of descent from the ancestor. The term may include an adopted child."
"Descent. Hereditary succession. Succession to the ownership of an estate by inheritance, or by any act of law, as distinguished from `purchase.' Title by descent is the title by which one person, upon the death of another, acquires the real estate of the latter as his heir at law....
". . . .
"Classification
"Descents are of two sorts, lineal and collateral. Lineal descent is descent in a direct or right line, as from father or grandfather to son or grandson. Collateral descent is descent in a collateral or oblique line, that is, up to the common ancestor and then down from him, as from brother to brother, or between cousins."
(Emphasis in original.)
However, under the peculiar circumstances of this case, there was a latent ambiguity in the term "lineal descendants" as used in the testator's will. Dennis Ray was born within 300 days after the marriage of William and Irene was terminated by divorce; therefore, he was legally presumed to be William's son. See Ala.Code 1975, § 26-17-5(a)(1). Consequently, because the challenge to his paternity is now barred by the rule of repose, see Tierce v. Ellis, supra, Dennis Ray falls within the generally accepted legal definition of a "lineal descendant" of the testator, and he would perhaps inherit from the testator under the general rules governing intestate succession. However, given the particular facts of this case, it does not necessarily follow that Dennis Ray's legal status as a lineal descendant of the testator entitles him to a share of the estate under the testator's will. As previously noted, testamentary intent is the polestar in the construction of wills. Tierce v. Macedonia United Methodist Church of Northport, supra. The evidence in this case indicated that *258 the testator believed that it was impossible for William to be Dennis Ray's father. The testator never acknowledged Dennis Ray as a grandson, and he excluded Dennis Ray as a beneficiary under the trust agreement that he executed on the same day that he executed his will. That agreement specifically states that one share of the trust corpus was set aside for "the descendants of Grantor's deceased son, William C. Tierce, namely: Brenda T. Scrivner, Shelia T. Ellis, Howard W. Tierce, Cynthia Tierce, and Edna Tierce." Thus, because William was deceased when the testator executed his will and the trust agreement, and because the testator had designated in his trust agreement those descendants of William whom he intended to share in his estate, it is evident that the testator intended for that portion of his will stating that "the lineal descendants of any deceased child shall take in equal shares, per stirpes, the share to which [William] would have been entitled if living" to allow only the designated descendants of William or, if any of them had died leaving children, their children, to share William's portion of the estate. Considering the particular facts of this case, and placing ourselves in the position the testator was in when he executed his will, as we are required to do, see Gotlieb v. Klotzman, 369 So.2d 798 (Ala.1979), we conclude that it would be unreasonable to hold that the testator could have intended for a share of his estate to go to Dennis Ray. In reaching this conclusion, we note that this case is distinguishable from the cases cited by Dennis Ray involving adopted children. See McCaleb v. Brown, supra (deed construction); Zimmerman v. First National Bank of Birmingham, 348 So.2d 1359 (Ala.1977) (will construction); Southside Baptist Church v. Drennen, 362 So.2d 854 (Ala.1978) (will construction); Gotlieb v. Klotzman, supra (will construction). In those cases, this Court held that adopted children were presumed to be included in designated classes of "children," "descendants," "surviving descendants," "legal descendants," or "lawful issue," unless the context or circumstances clearly established a contrary intention and the testator or grantor demonstrated a definite intent to exclude. The circumstances surrounding the birth of Dennis Ray and the language used by the testator in his trust agreement clearly provide a basis for the trial court's finding that the testator intended to exclude Dennis Ray from the class of "lineal descendants" designated in his will.
This is a classic case involving a latent ambiguity in a will. Parol evidence was admissible both to reveal and to clear up the ambiguity in the will that was caused by the circumstances surrounding its execution. Although the rule of repose prevents a direct challenge to Dennis Ray's paternity, his resulting legal status as a "lineal descendant" cannot be asserted to thwart the testator's intent.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
MADDOX, ALMON, KENNEDY, INGRAM and COOK, JJ., concur.
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ACCEPTED
04-14-00751-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
6/29/2015 2:03:28 PM
KEITH HOTTLE
NO. 04-14-00751-CV
CLERK
IN THE COURT OF APPEALS
FOURTH DISTRICT OF TEXAS FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS
06/29/2015 2:03:28 PM
KEITH E. HOTTLE
JOSEFINA ALEXANDER GONZALEZ, ET AL, Clerk
Appellants
v.
RAYMOND S. DE LEON II, ET AL,
Appellee
APPELLANTS’ MOTION FOR LEAVE TO FILE
POSTSUBMISSION BRIEF
TO THE HONORABLE FOURTH COURT OF APPEALS:
At oral argument this Court raised several questions, the responses to
which Appellants believe merit more discussion. Therefore, Appellants
submit this post-submission brief in an effort to more fully address the
matters on which this Court expressed interest.
For these reasons, Appellants ask this Court to grant them leave to file
their Post-Submission Brief, which they are submitting simultaneously with
this motion.
Respectfully submitted,
/s/Robinson C. Ramsey______
ROBINSON C. RAMSEY
State Bar No. 16523700
Email: [email protected]
LANGLEY & BANACK, INC.
Appellants’ Motion for Leave to File Post-Submission Brief Page 1
Trinity Plaza II, Suite 900
745 E. Mulberry Avenue
San Antonio, Texas 78212
Telephone: 210.736.6600
Telecopier: 210.735.6889
ATTORNEY FOR APPELLANTS
CERTIFICATE OF CONFERENCE
Appellants’ attorney has conferred with counsel for Appellee
Raymond S. De Leon II by email, but has not received a response.
/s/ Robinson C. Ramsey
ROBINSON C. RAMSEY
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing
document has been served on this 29th day of June, 2015, to the following
counsel of record:
Judith R. Blakeway
Email: [email protected]
James Maverick McNeel
Email: [email protected]
Laura C. Mason
Email: [email protected]
STRASBURGER & PRICE, LLP
2301 Broadway
San Antonio, Texas 78215
Attorneys for Raymond S. De Leon II, Trustee of the Family Trust
/s/Robinson C. Ramsey______
ROBINSON C. RAMSEY
Appellants’ Motion for Leave to File Post-Submission Brief Page 2
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Opinion issued September 29, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00868-CR
———————————
EX PARTE STUART OLAND WHEELER
On Appeal from the 155th District Court
Austin County, Texas
Trial Court Cause No. 2014V-0074
O P I N I O N
Stuart Oland Wheeler was indicted on the felony charge of online
solicitation of a minor under Texas Penal Code section 33.021(c). See Tex. Pen.
Code Ann. § 33.021(c) (West 2014). Wheeler filed a pretrial application for a writ
of habeas corpus in which he asserted that subsections 33.021(c) and (d) are
facially unconstitutional. Noting that the Court of Criminal Appeals invalidated
subsection (b) of the same statute as an overbroad content-based restriction on
protected speech, see Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013),
Wheeler argued that the surviving subsections (c) and (d) are likewise
unconstitutional. In particular, Wheeler contends that subsections (c) and (d), in
combination, (1) violate the First Amendment of the United States Constitution
because they are overbroad content-based restrictions that criminalize protected
speech between consenting adults, (2) are contradictory and unconstitutionally
vague, and (3) violate the Dormant Commerce Clause because they unduly restrict
interstate internet communication. Wheeler appeals the trial court’s denial of the
application. We affirm.
Penal Code Section 33.021
Wheeler was indicted under Penal Code section 33.021(c), which states:
(c) A person commits an offense if the person, over the Internet, by
electronic mail or text message or other electronic message service
or system, or through a commercial online service, knowingly
solicits a minor to meet another person, including the actor, with the
intent that the minor will engage in sexual contact, sexual
intercourse, or deviate sexual intercourse with the actor or another
person.
TEX. PEN. CODE ANN. § 33.021(c) (West 2014). Section 33.02(a)(1) defines
“minor” as:
(A) an individual who represents himself or herself to be younger
than 17 years of age; or
(B) an individual whom the actor believes to be younger than 17
2
years of age.
Id. § 33.021(a)(1). And subsection (d) provides that it is not a defense to
prosecution under subsection (c) that:
(1) the meeting did not occur;
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of
the offense.
Id. § 33.021(d).
The Parties’ Arguments
Wheeler contends that these provisions are facially unconstitutional in three
respects. First, he asserts that they are overbroad because they impermissibly
restrict protected speech between persons engaged in “ageplay,” which Wheeler
asserts is a prevalent practice in which consenting adults roleplay as children for
their sexual gratification. According to Wheeler, the statute is overbroad because
it permits the conviction of an ageplayer who speaks solicitant words to “the object
of his sexual attention, who ‘represents himself’ to be a child”—and thus meets the
statute’s definition of “minor”—but is not in fact a child. Wheeler also contends
that the statute is overbroad because subsection (d) both (1) eliminates the specific
intent requirement of (c) and (2) precludes an ageplayer from defending himself on
the basis that the solicitation was a mere fantasy.
3
Second, Wheeler argues that the statute is unconstitutionally vague because
subsection (c) purports to require proof of specific intent—that the defendant
intended to meet and have sexual contact with the minor at the time of the
solicitation—only to have subsection (d) “eliminate[] the intent element” of (c).
Wheeler asserts that this contradiction prevents persons of ordinary intelligence
from understanding the prohibited conduct.
Finally, Wheeler asserts that the statute violates the Dormant Commerce
Clause because it unduly burdens interstate commerce by “attempting to place
regulations on [i]nternet users everywhere.”
Based on his premise that the statute is a content-based restriction on
protected speech, Wheeler asserts that we must presume the statute invalid and that
the State has the burden to demonstrate its validity under the categorical approach
employed by the United States Supreme Court in Alvarez and Stevens. See United
States v. Alvarez, 132 S. Ct. 2537 (2012); United States v. Stevens, 559 U.S. 460
(2010). Alternatively, he argues that, at a minimum, we must subject the statute
to strict scrutiny.
The State contends that Penal Code section 33.021(c) restricts conduct and
not merely speech. Therefore, argues the State, we must presume that the statute is
valid and subject it only to rational basis review. The State contends that the
statute bears a rational relationship to the legitimate state interest in protecting
4
minors from sexual predators and thus passes constitutional muster. Alternatively,
the State argues that if the combination of (c) and (d) is unconstitutional, we should
uphold subsection (c), under which Wheeler was indicted, and strike the offending
portions of subsection (d).
Standard of Review
Whether a statute is facially unconstitutional is a question of law that we
review de novo. Ex parte Lo, 424 S.W.3d at 14. When the constitutionality of a
statute is attacked, we usually begin with the presumption that the statute is valid
and that the legislature has not acted unreasonably or arbitrarily in enacting it. Id.
at 14–15. The party challenging the statute normally carries the burden to establish
the statute’s unconstitutionality. Id. at 15.
A different standard of review applies, however, if the challenged statute
seeks to restrict speech based on its content. Ex parte Lo, 424 S.W.3d at 15. In
that case, the usual presumption of constitutionality is reversed, the statute is
presumed invalid, and the State bears the burden to rebut the presumption. Id.
This is because statutes that suppress, disadvantage, or impose differential burdens
upon speech because of its content are subject to the most exacting scrutiny. Id.
(quoting Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S. Ct. 2445
(1994)). A law that regulates speech thus survives only if it is narrowly drawn and
necessary to serve a compelling state interest. Ex parte Lo, 424 S.W.3d at 15.
5
Wheeler argues that the Court of Criminal Appeals incorrectly applied strict
scrutiny in Ex parte Lo, and he urges us to apply the “categorical approach.” We
conclude that we are bound to apply the usual standard in which we presume the
statute’s validity and Wheeler bears the burden to demonstrate its invalidity.
Ex parte Lo leads us to this conclusion. Lo was charged under section
33.021(b), which prohibited a person from communicating online in a sexually
explicit manner with a minor if the person had the intent to arouse and gratify
anyone’s sexual desire. Ex parte Lo, 424 S.W.3d at 17. The Court of Criminal
Appeals concluded that section 33.021(b) was unconstitutionally overbroad
because it restricted and punished speech based on content but was not narrowly
drawn. Id. at 24 (noting that subsection (b) would bar electronic communication
relating to “many modern movies, television shows, and ‘young adult’ books, as
well as outright obscenity, material harmful to a minor, and child pornography”).
In reaching that conclusion, the Court of Criminal Appeals noted that
subsection (c), under which Wheeler was charged, “provides an excellent contrast”
to subsection (b). Id. at 17. The Court described subsection (c) as a solicitation
statute, the likes of which have been routinely upheld, because offers to engage in
illegal transactions such as sexual assault of minors are categorically excluded
from First Amendment protection. Id. at 16–17. It expressly noted that the
gravamen of the offense of solicitation is “the conduct of requesting a minor to
6
engage in illegal sexual acts.” Id. at 17 (emphasis in original). It contrasted
subsection (b) as “very different” because it “prohibits and punishes speech based
on its content.” Id. Following Lo, we conclude that section 33.021(c) regulates
conduct and unprotected speech. Id. (noting solicitation of minors is
constitutionally unprotected speech); see also Ex parte Victorick, No. 09-00551-
CR, 2014 WL 2152129, at *2 (Tex. App.—Beaumont May 21, 2014, pet. ref’d)
(mem. op., not designated for publication) (concluding that section 33.021(c)
punishes conduct rather than the content of speech alone), cert. denied, Victorick v.
Texas, 135 S. Ct. 1557 (2015). We therefore must presume the statute’s validity
and place the burden of demonstrating unconstitutionality upon Wheeler. Ex parte
Lo, 424 S.W.3d at 17; Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—
Houston [1st Dist.] 2009, pet. ref’d.) (applying presumption that statute is valid in
its review of overbreadth and vagueness challenges to Penal Code section
33.021(c)); Ex parte Zavala, 421 S.W.3d 227, 231 (Tex. App.—San Antonio 2013,
pet. ref’d) (presuming validity of Penal Code section 33.021(c) in considering
vagueness challenge); Ex parte Victorick, 2014 WL 2152129, at *2 (applying
presumption of statutory validity in overbreadth and vagueness challenges to
section 33.021(c)).
Overbreadth Challenges
According to the First Amendment overbreadth doctrine, a statute is facially
7
invalid if it prohibits a “substantial” amount of protected speech “judged in relation
to the statute’s plainly legitimate sweep.” Ex parte Lo, 424 S.W.3d at 18 (quoting
Virginia v. Hicks, 539 U.S. 113, 118–19, 123 S. Ct. 2191 (2003)); see also Bynum
v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989). Before a statute will be
invalidated on its face as overbroad, the overbreadth must be real and substantial in
relation to its plainly legal sweep. Broadrick v. Oklahoma, 413 U.S. 601, 615
(1973). Put differently, a statute should not be invalidated for overbreadth merely
because it is possible to imagine some unconstitutional application. See In re Shaw,
204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d).
1. Penal Code Section 33.021(c)
This Court, and the Beaumont Court of Appeals, have held that Penal Code
section 33.021(c) is not unconstitutionally overbroad. See Maloney, 294 S.W.3d at
626–29 (rejecting overbreadth challenge to subsection 33.021(c)); Ex parte
Victorick, 2014 WL 2152129, at *2 (same). Nevertheless, Wheeler urges us to
revisit this precedent in light of his argument that the statute prohibits an adult
ageplayer from soliciting a consenting fellow ageplayer who is pretending to be a
child as part of a fantasy. In support of his argument, Wheeler relies on an article
by Paul J. Dohearty demonstrating the purported prevalence of ageplay.
But longstanding precedent teaches that a statute should not be invalidated
for overbreadth merely because it is possible to imagine some unconstitutional
8
application. In re Shaw, 204 S.W.3d at 15 (citing Members of City Council v.
Taxpayers for Vincent, 466 U.S. 789, 800, 104 S. Ct. 2118 (1984)); Ex parte
Victorick, 2014 WL 2152129, at *2. Indeed, the United States Supreme Court has
explained,
Because of the wide-reaching effects of striking down a statute on its face at
the request of one whose own conduct may be punished despite the First
Amendment, we have recognized that the overbreadth doctrine is “strong
medicine” and have employed it with hesitation, and then “only as a last
resort.”
New York v. Ferber, 458 U.S. 747, 769, 102 S. Ct. 3348 (1982) (citing Broadrick,
413 U.S. at 613).
Here, the government objective—to protect children from sexual
exploitation and abuse—is one the Supreme Court of the United States regards as
having surpassing importance. Id. at 757. Although the Dohearty article asserts
that ageplay is increasingly prevalent in the age of social media, we conclude that
the legitimate reach of Penal Code section 33.021(c) dwarfs the threat of its
arguably impermissible application to innocent ageplayers and that whatever
overbreadth exists should be cured by thorough and case-by-case analysis and
judicious use of prosecutorial discretion.1 See Maloney, 294 S.W.3d at 627 (citing
Ferber, 458 U.S. at 773–74). Because the statute’s arguable overbreadth is
insubstantial when judged in relation to the statute’s plainly legitimate sweep, we
1
We note that Wheeler himself does not assert that he was engaging in innocent
ageplay when he made the online solicitation for which he was indicted.
9
hold that Penal Code section 33.021(c) is not unconstitutionally overbroad. Id; see
also Ex parte Victorick, 2014 WL 2152129, at *2.
2. Penal Code Section 33.021(d)(2)
Wheeler contends that Penal Code section 33.021(d)(2) is overbroad because
it eliminates the element of specific intent required by subsection (c). See TEX.
PEN. CODE ANN. § 33.021(d)(2) (providing that it is not a defense to prosecution
under section 33.021(c) that the actor did not intend for the solicited meeting to
occur). Thus, argues Wheeler, the statute permits conviction even of one who did
not, in fact, intend at the time of the solicitation to actually meet the minor whom
he solicited. We disagree.
“If a statute can be construed in two different ways, one of which sustains its
validity, we apply the interpretation that sustains its validity.” Maloney, 294
S.W.3d at 626. Here, we read subsection (c) to require proof of specific intent to
meet at the time of the solicitation, and subsection (d)(2) to refer only to the
solicitor’s intent post-solicitation. In other words, we interpret subsection (d)(2) to
preclude only a defense on the basis that the solicitor lost the specific intent to
meet or changed his mind about meeting after the solicitation occurred. We hold
that Subsection (d)(2) does not relieve the State of its burden to prove that the
10
defendant had the specific intent to meet at the time of the solicitation. 2 See Ex
parte Zavala, 421 S.W.3d at 231–32 (concluding that Penal Code sections
33.021(c) and (d)(2) are not contradictory and construing (d)(2) to mean that it is
irrelevant whether, post-solicitation, the defendant no longer intended for the
meeting to occur, because offense is complete at the time of solicitation if the
defendant has the requisite intent to meet at the time of the solicitation).
3. Penal Code Section 33.021(d)(3)
Wheeler argues that Penal Code section 33.021(d)(3) is unconstitutionally
overbroad because it precludes a defense to prosecution under (c) based on the fact
that a defendant was engaged in ageplay—i.e., was fantasizing that the consenting
adult receiving the solicitation was actually a child—at the time of the solicitation.
As we discussed above, a statute should not be invalidated for overbreadth
merely because it is possible to imagine some unconstitutional application. In re
Shaw, 204 S.W.3d at 15 (citing Taxpayers for Vincent, 466 U.S. at 800); Ex parte
Victorick, 2014 WL 2152129, at *2. As we have already concluded, the statute’s
plainly legitimate objective is one of surpassing importance. When judged in
2
Wheeler argues that this interpretation of (d)(2) would render it superfluous and
therefore meaningless, because a “change of heart” defense is not a defense in any
case. We note, however, that renunciation may be an affirmative defense in some
circumstances, see TEX. PENAL CODE ANN. § 15.04 (West 2011), and that it was
the legislature’s prerogative to underscore in (d)(2) the concept that the offense
described in section 33.021 is complete when the culpable request or inducement
is unilaterally presented. We also note that the legislature has amended section
33.021 to eliminate (d)(2) and (d)(3), effective September 1, 2015.
11
comparison to the statute’s plainly legitimate sweep, we conclude that the statute’s
arguable overbreadth is insubstantial. Accordingly, we hold that Penal Code
section 33.021(d)(3) is not unconstitutionally overbroad. Id.; see also Ex parte
Victorick, 2014 WL 2152129, at *2.
We overrule Wheeler’s first issue.
Vagueness Challenge
Under the void-for-vagueness doctrine, a statute will be invalidated if it fails
to give a person of ordinary intelligence a reasonable opportunity to know what
conduct is prohibited. See State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim.
App. 2006). Statutes are not necessarily unconstitutionally vague merely because
the words or terms employed in the statute are not defined. See Engelking v. State,
750 S.W.2d 213, 215 (Tex. Crim. App. 1988). When the words used in a statute
are not otherwise defined in the statute, we will give the words their plain meaning.
See Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999).
Wheeler argues that the statute is unconstitutionally vague because Section
33.021(d) “eliminates the intent element from Section 33.021(c).” Wheeler asserts
that the statute is thus self-contradcitory and, therefore, people of common
intelligence must necessarily guess at its meaning. As we discussed in the context
of Wheeler’s overbreadth challenges, if a statute can be construed in two different
ways, one of which sustains its validity, we apply the interpretation that sustains its
12
validity. Maloney, 294 S.W.3d at 625. We have construed subsection (c) to
require proof of specific intent to meet at the time of the solicitation, and we hold
that subsection (d)(2) refers only to the solicitor’s intent post-solicitation. This
construction of the statute eliminates any supposed conflict between subsection (c)
and subsection (d)(2). See Ex parte Zavala, 421 S.W.3d at 232 (concluding that
Penal Code sections 33.021(c) and (d)(2) are not contradictory and rejecting
vagueness challenge based on asserted contradiction). Accordingly, we hold that
Penal Code section 33.021 is not unconstitutionally vague.
We overrule Wheeler’s second issue.
Commerce Clause Challenge
In his third issue, Wheeler contends that section 33.021 violates the Dormant
Commerce Clause of the United States Constitution by “unduly burden[ing]
interstate commerce by attempting to place regulations on the entirety of the
internet.” See U.S. CONST. art. I, § 8.
The only authority Wheeler cites in support is American Libraries
Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) (striking down statute
criminalizing use of a computer to communicate sexually explicit materials to
minors). In Pataki, the defendants “[did] not challenge the sections of the statute
that . . . prohibit adults from luring children into sexual contact by communicating
with them via the internet.” Id. at 179. Rather, the law challenged in Pataki was
13
aimed at limiting exposure by minors to harmful content. It was that portion of the
law which was ultimately found to impose a burden on interstate commerce that
was disproportionate to the local benefits of regulation. Section 33.021(c), by
contrast, does not punish communication of explicit materials to minors. Instead, it
criminalizes online solicitation of minors with the intent to engage in sexual
conduct. Pataki is thus inapposite.
The Supreme Court of the United States established a balancing test to
determine whether a burden on interstate commerce imposed by a regulation is
excessive in relation to putative local benefits. See Pike v. Bruce Church, Inc., 397
U.S. 137, 142; 90 S. Ct. 844, 847 (1970). Where the statute regulates even-
handedly to effectuate a legitimate local public interest, and its effects on interstate
commerce are only incidental, it will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative local benefits. Huron
Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S. Ct. 813, 816
(1960). If a legitimate local purpose is found, then the question becomes one of
degree. And the extent of the burden that will be tolerated will depend on the
nature of the local interest involved, and on whether it could be promoted as well
with a lesser impact on interstate activities. Pike, 397 U.S. at 142.
Wheeler does not articulate, and we cannot discern, how section 33.021
differentiates between inter and intra state commerce. The statute is even-handed.
14
Courts have concluded—and we agree—that protecting children from sexual
predators is a legitimate local public interest. See, e.g., Ex parte Lo, 424 S.W.3d at
21 (“There is no question that the State has a right—indeed a solemn duty—to
protect young children from the harm that would be inflicted upon them by sexual
predators.”). And we also conclude that the effect of the statute on interstate
commerce is only incidental in relation to the local benefit of the statute.
Accordingly, we reject Wheeler’s challenge to section 33.021 under the Dormant
Commerce Clause. Huron Portland Cement, 362 U.S. at 443 (evenhanded local
regulation to effectuate a legitimate local public interest is valid unless unduly
burdensome on interstate commerce).
We overrule Wheeler’s third issue.
Conclusion
We affirm the trial court’s ruling denying Wheeler’s application for habeas
corpus relief.
Rebeca Huddle
Justice
Panel consists of Justices Jennings, Higley, and Huddle.
Publish. TEX. R. APP. P. 47.2.
15
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952 So.2d 693 (2007)
STATE of Louisiana
v.
Mark FORREST.
No. 2006-KP-1546.
Supreme Court of Louisiana.
March 16, 2007.
Denied.
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31 So.3d 180 (2010)
THOMAS
v.
THOMAS.
No. 1D09-3798.
District Court of Appeal of Florida, First District.
March 30, 2010.
Decision Without Published Opinion Affirmed.
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00052-CR
CRAIG ARLEN MURRAH APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
I. Introduction
In five issues, Appellant Craig Arlen Murrah appeals his official oppression
conviction. We reform the trial court’s judgment and affirm as reformed.
II. Factual and Procedural History
Murrah was a Fort Worth police officer when he was charged by indictment
with official oppression.2 The indictment contained ten paragraphs, but before
1
See Tex. R. App. P. 47.4.
trial began, the State waived paragraphs 1, 2, 5, 6, 7, and 10, and it deleted
some language from paragraphs 8 and 9. The language in the jury charge,
however, reflects only paragraphs 3 and 4. The jury found Murrah guilty ―as
charged in the indictment,‖ and the trial court’s judgment states that Murrah was
convicted of paragraphs 3, 4, 8, and 9. The trial court assessed punishment at
six months’ confinement and a $2,000 fine. This appeal followed.
III. Judgment
In his first, second, and fifth issues, Murrah complains that the judgment
incorrectly reflects that he was convicted of official oppression as alleged in
paragraphs eight and nine because the jury was never charged on these
paragraphs. The State agrees, and the record reflects this. Therefore, we
sustain Murrah’s first, second, and fifth issues and reform the judgment to reflect
that Murrah was convicted of official oppression on paragraphs three and four.
IV. Sufficiency of the Evidence
In his third issue, Murrah argues that the evidence is factually insufficient
to support his conviction as alleged in paragraphs three and four of the
indictment.3 However, the court of criminal appeals has recently overruled
2
Because Murrah challenges the sufficiency of the evidence to support his
conviction, we will address the evidence below.
3
Murrah also challenges the factual sufficiency of the evidence to support
his conviction as alleged in paragraphs eight and nine of the indictment but,
based on our resolution of his first, second, and fifth issues, we need not address
this issue. See Tex. R. App. P. 47.1.
2
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), upon which the factual
sufficiency standard of review is based, and decided ―that the Jackson v. Virginia
legal-sufficiency standard is the only standard that a reviewing court should apply
in determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt.‖
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In the interests of
justice, we will review Murrah’s third issue under Jackson.
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the
weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04
(Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008),
cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary
sufficiency review, we may not re-evaluate the weight and credibility of the
3
evidence and substitute our judgment for that of the factfinder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether
the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to
the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We
must presume that the factfinder resolved any conflicting inferences in favor of
the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793; Clayton, 235 S.W.3d at 778.
B. Evidence
Corinna Mascorro testified that she was with Paul Botello, her children’s
father, on the night of June 21, 2007. Around 1 a.m., they drove to a nearby park
and were engaging in sexual intercourse when another car pulled up. When they
saw the headlights, they hurried to find their clothing. Someone—a police
officer—knocked on the car window and asked for their identification; Botello
could not find his initially, but Mascorro gave the officer hers. The officer asked
her to step out of the car, and she asked if she could put her clothes on. He said
no.
Mascorro emerged from the vehicle naked from the waist down; she
grabbed Botello’s shirt and put it around her waist. The officer escorted
Mascorro to his patrol car and put her in the back seat while he ran warrant
checks. He asked her whether she knew she could go to jail for having sex in
the park. Mascorro testified that she started crying when she thought about
4
going to jail and leaving her children. The officer kept asking her if she had
learned her lesson.
Botello testified that he was nervous when the officer approached their car
because he knew he had outstanding warrants. After the officer had Mascorro
step out of the car and moved his vehicle behind theirs,4 Botello could not see
anything.
The officer had Mascorro get back out of his patrol car and told her to turn
around and put her hands behind her back. Botello’s shirt, which she had been
holding, fell to the ground. Mascorro testified that at that point, she thought that
the officer was going to handcuff her and take her to jail. Instead, he told her to
bend down and said that he did not think she had learned her lesson. Then he
hit her with his hand, hard, ―like four or five times on [her] bare butt.‖ She asked
him to stop, and he told her, ―Quit being a drama queen.‖
Afterwards, the officer nudged Mascorro to go back to her car and returned
her identification to her. She picked up Botello’s shirt, walked back to her car,
and told Botello what had happened. Enraged, Botello jumped out of the car to
confront the officer, but ―the cop drove off too fast.‖ They followed the officer,
calling 911 while in pursuit. When the officer pulled into a police station, they
obtained his patrol car number and then drove back to Botello’s house.
4
Mascorro and Botello stated that during the incident, the officer changed
the position of his patrol car so that it was behind their vehicle.
5
Botello stated that he stepped out of the car when he heard Mascorro
crying. He approached the patrol car when the officer released Mascorro’s
hands, which were bound behind her back, and Mascorro ran towards him. As
Botello approached, the officer—whom Botello identified as Murrah—put his
hand on his weapon and told him not to take a step closer, then got into the
patrol car and took off. Botello’s 911 call was admitted in evidence and
published to the jury. During cross-examination, Botello admitted that the first
patrol car number that he gave the 911 dispatcher was different from the second
time he gave the number, from ―1059‖ to ―1092.‖
A police supervisor, Corporal Lawrence Blanchard, subsequently called
and spoke with both Mascorro and Botello. When Corporal Blanchard did not
follow up with them within two or three weeks, Mascorro and her father went to
the downtown police station and spoke with Sergeant Pablo Criado. Mascorro
provided Sergeant Criado with a written statement, and he recorded his interview
with her and showed her a photographic lineup, from which she identified
Murrah.
Sergeant Criado described Mascorro’s and her father’s demeanors when
they walked into the station to make the complaint: ―Crying, she was crying. The
father was really quiet, and you could read his body language that he was really
upset and—to the point where they apprised me of the fact that they were looking
for this officer.‖ He interviewed Botello the next day and observed that their
stories were consistent.
6
Corporal Blanchard testified that at the time of the incident, he was
Murrah’s supervisor. In the early morning hours of June 22, 2007, he received
information that he ―needed to call a citizen in reference to a complaint against
. . . one of [his] officers. He spoke with Botello and Mascorro and then called
Murrah. Murrah told him that he had had contact with Mascorro and Botello but
denied their allegations.
Murrah’s ―Officer’s Daily Activity Report‖ for the date of the offense was
admitted during Corporal Blanchard’s testimony. The report indicated that at
1:13 a.m., Murrah self-initiated an investigation. It also indicated that Murrah’s
vehicle that night was #1092. Corporal Blanchard testified that Murrah’s vehicle
was equipped with video equipment but that he did not recall reviewing the video.
He reported the complaint about Murrah to his supervisor and then followed up
with Botello, although it was ―hit and miss.‖ The complaint was addressed again
two or three weeks later when Mascorro or Botello brought it to internal affairs.
Sergeant William Hix, who was working in internal affairs when Mascorro
made her complaint, testified about police procedures taught for opposite sex
encounters. He stated that if an officer encountered a nude or partially nude
female, that person would be allowed to either get clothed or, if no clothing was
available, to find something to cover herself up with, and that he ―would suggest
the first thing [an officer] should do is call somebody to come out there . . . to
have another officer . . . to ensure that nothing unusual occurred.‖ He explained
that the Fort Worth police have an 800-page general orders book that includes a
7
code of conduct detailing the behavior expected of an officer. Under the code of
conduct, officers are not allowed to mock, taunt, or humiliate those they come
into contact with in the community. He replied, ―No, never,‖ when asked whether
there was ever a time when officers are allowed to lay hands on detainees to
enforce their own punishment as they see fit. And he stated, ―I believe so,‖ when
asked whether ―the manner and way [Murrah] treated [Mascorro] in spanking or
striking her several times on her bare buttocks‖ was something that Murrah was
taught was unlawful.
Sergeant Hix testified about Murrah’s patrol vehicle’s computer ―CAD‖ log
from June 22, 2007, which was entered in evidence. It reflected that at 1:17
a.m., Murrah requested from the dispatcher an investigative call—which can be
anything more than a mere traffic stop—at 1500 East North Side Drive,
approximately a mile away from the park. The request took him ―out of service,‖
i.e., unavailable for other calls. Sergeant Hix stated that when an officer is
conducting an investigation or detaining a person, he is acting under the color of
his employment as a police officer and acting in an official capacity.
The next CAD entry was for 1:19 a.m. and showed that Murrah checked
Mascorro’s and Botello’s basic information. Sergeant Hix noted that Murrah’s
check on Mascorro’s and Botello’s personal information was unusually quick,
which raised a red flag for him. Murrah’s daily activity report confirmed that he
had made contact with Mascorro and the time of the contact, but there was a
―significant difference between the address that he documented to what they
8
reported.‖ He testified that he never looked for CAD logs for patrol unit #1059
but that, based on his investigation, unit #1059 was not on duty that evening.
And he testified that Corporal Blanchard told him that ―there was no videotape or
it wasn’t captured on video‖ or that nothing relevant to the investigation was
captured on video.
C. Analysis
A public servant acting under color of his office or employment commits an
offense if he intentionally subjects another to mistreatment that he knows is
unlawful. Tex. Penal Code Ann. § 39.03(a)(1) (Vernon 2009). ―Unlawful‖ means
criminal or tortious or both. Id. § 1.07(48) (Vernon 2009). A public servant acts
―under color of his office or employment‖ if he acts or purports to act in an official
capacity or takes advantage of such actual or purported capacity. Id. § 39.03(b).
The indictment alleged in paragraph 3 that Murrah mistreated Mascorro by
holding her hands behind her back and causing her to bend over while she was
partially clothed or naked, which he knew was unlawful, and in paragraph 4 that
Murrah mistreated Mascorro by spanking or striking her with his hand on her
bare buttocks, which he knew was unlawful. See State v. Edmond, 933 S.W.2d
120, 127 (Tex. Crim. App. 1996) (―[A] defendant charged under [this section]
must mistreat another and must also know that his conduct is criminal or
tortious.‖).
The testimony at trial reflected that Murrah was a public servant—a police
officer—acting under color of his office or employment when he made an
9
investigative stop. Viewed in the light most favorable to the prosecution, the
evidence in the record supports the jury’s finding that Murrah held Mascorro’s
hands behind her back and caused her to bend over while she was partially
clothed and that he spanked or struck her with his hand on her bare buttocks.
And the jury could have inferred from the evidence that Murrah knew this conduct
was unlawful. See Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009)
(stating that circumstantial evidence is reviewed under the same standard as
direct evidence). Therefore, we conclude that the evidence is legally sufficient to
support Murrah’s conviction for official oppression as alleged in paragraphs 3 and
4 of the indictment, and we overrule his third issue.
V. Conclusion
Having sustained Murrah’s first, second, and fifth issues and overruled
Murrah’s remaining dispositive issue, we reform the trial court’s judgment to
delete paragraphs 8 and 9 and to reflect his conviction for ―official oppression
(paragraphs three and four).‖ We affirm the trial court’s judgment as reformed.
PER CURIAM
PANEL: MCCOY, J.; LIVINGSTON, C.J.; and GABRIEL, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 10, 2011
10
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Case: 17-20437 Document: 00514860946 Page: 1 Date Filed: 03/06/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-20437 FILED
Summary Calendar March 6, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MILTON EARL CARBE,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:01-CR-337-1
Before STEWART, Chief Judge, and OWEN and OLDHAM, Circuit Judges.
PER CURIAM: *
Milton Earl Carbe, federal prisoner # 66325-079, was convicted of one
count of conspiracy to possess with intent to distribute cocaine, and one count
of possession with intent to distribute cocaine. He was sentenced to a total of
life imprisonment. He unsuccessfully moved pursuant to 18 U.S.C. § 3582(c)(2)
for a reduction in sentence based on Amendments 706, 711, 715, and 750 to the
Sentencing Guidelines. Carbe thereafter moved for a sentence reduction based
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-20437 Document: 00514860946 Page: 2 Date Filed: 03/06/2019
No. 17-20437
on Amendment 782. The district court granted the motion and sentenced him
within the amended guidelines range to concurrent terms of 405 months in
prison.
Carbe later filed another § 3582(c)(2) motion in which he alleged that he
was entitled to a reduction in sentence based on the same amendments that he
referenced in his unsuccessful motion. The district court concluded that Carbe
was not eligible for a further reduction in his sentence and denied the motion.
He now appeals from that denial.
While the § 3582(c)(2) motion at issue was successive, the district court
had jurisdiction to consider it. See United States v. Calton, 900 F.3d 706, 711
(5th Cir. 2018). We similarly have jurisdiction to review the appeal. See id. at
713. Because there are no other jurisdictional or procedural bars to our
considering the present appeal, we will address the merits of the motion. See
id. at 714.
Carbe contends that he was entitled to a reduction in sentence based on
Amendments 706, 711, 715, and 750. We review the denial of a § 3582(c)(2)
motion for an abuse of discretion, United States v. Henderson, 636 F.3d 713,
717 (5th Cir. 2011), and review de novo whether a defendant is eligible for a
reduction in sentence, United States v. Evans, 587 F.3d 667, 672 (5th Cir.
2009).
Section 3582(c)(2) allows for the discretionary reduction of a sentence
when the defendant is sentenced to a prison term based on a sentencing range
that has subsequently been lowered by the Sentencing Commission under 28
U.S.C. § 994(o). § 3582(c)(2). In deciding whether to reduce a sentence, a
district court must first determine that the reduction is consistent with
U.S.S.G. § 1B1.10. Dillon v. United States, 560 U.S. 817, 826 (2010). Under
§ 1B1.10, a reduction will be authorized if a defendant is serving a term of
2
Case: 17-20437 Document: 00514860946 Page: 3 Date Filed: 03/06/2019
No. 17-20437
imprisonment, and the guidelines range applicable to him subsequently has
been lowered due to an amendment to the Guidelines set forth in § 1B1.10(d).
§ 1B1.10(a)(1). A reduction will not be authorized if the qualifying amendment
does not have the effect of lowering the defendant’s applicable guidelines
range. § 1B1.10(a)(2)(B).
While Carbe suggests that the amendments on which his instant motion
is based render him eligible for a further sentence reduction, he is misguided.
Because he was granted relief in a prior modification proceeding, he can secure
another reduction only by showing that a qualifying amendment subsequently
lowered the guidelines range applied in that proceeding. See United States v.
Banks, 770 F.3d 346, 348-50 (5th Cir. 2014); § 3582(c)(2); § 1B1.10(a)(1),
(a)(2)(B). The amendments on which his instant motion relies were
promulgated and in effect at the time of the prior modification proceeding and,
thus, could not have caused his guidelines range to be lowered subsequent to
that proceeding. See § 3582(c)(2); § 1B1.10(a)(1), (a)(2)(B). In any event, he
has not shown that he was eligible for a reduction in sentence because the
referenced amendments would not have the effect of reducing his applicable
guidelines range. See § 3582(c)(2); § 1B1.10(a)(2)(B).
Carbe also asserts that the district court erred because it did not assess
whether a sentence reduction was warranted based on the 18 U.S.C. § 3553(a)
sentencing factors and his post-sentencing conduct. However, because Carbe
failed to establish that he was eligible for a reduction in sentence, the district
court had no obligation to consider these factors. See § 1B1.10(a)(2)(B); Dillon,
560 U.S. at 826.
AFFIRMED.
3
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216 Cal.App.3d 1551 (1990)
265 Cal. Rptr. 597
PHILLIP E. KERR, Plaintiff and Appellant,
v.
KENNETH L. ROSE et al., Defendants and Respondents.
Docket No. H004983.
Court of Appeals of California, Sixth District.
January 8, 1990.
*1555 COUNSEL
Timothy J. Donovan and John K. Haggerty for Plaintiff and Appellant.
Robert S. Venning, Cynthia L. Jackson, D. Christopher Kerby and Heller, Ehrman, White & McAuliffe for Defendants and Respondents.
OPINION
COTTLE, J.
In this wrongful termination action, plaintiff Phillip E. Kerr sued his former employer, the former employer's parent company, and various individuals for failing to recall him to work, as required by company policy, following his layoff from employment. The trial court dismissed the case after granting three separate motions for summary judgment. Kerr appeals from the judgment and from an order denying his motion for disclosure of his former employer's financial condition. We affirm the summary judgment in favor of the parent company, the summary judgment in favor of the individual defendants, and the order denying Kerr's motion for disclosure. We reverse, however, the summary judgment in favor of Kerr's former employer.
*1556 FACTS
Kerr began working for defendant Ford Aerospace and Communications Corporation (FACC) in April 1956 as a junior engineer. During his 26 years of continuous employment with FACC, Kerr received excellent evaluations, salary increases, promotions and numerous bonuses. In 1971, he was promoted to the executive category of private salary payroll (PSR).
In the company's best interests, Kerr, in October 1981, recommended a manufacturing realignment of his division at FACC which included the elimination of his own position. At the time he submitted his corporate reorganization plan, Kerr advised his supervisors that he would be seeking another PSR position within the organization. The manager of the industrial relations department, Lloyd Sunblad, however, advised Kerr that there were no other positions available to him at the PSR level. Kerr was given the option of working at a lower salary grade with the risk of being laid off subject to greatly reduced benefits or of accepting layoff at the PSR level with greater layoff benefits and subject to the company's written two-year recall policy. Kerr chose the latter option. He advised Sunblad in December 1981 that he was willing to relocate to any other FACC facility where there was a PSR position available.
Kerr began his layoff on January 31, 1982. When he had not yet been recalled to work by December 1983, Kerr telephoned to Michigan to talk to the president and chief executive officer of FACC, defendant Henry Hockeimer.[1] According to Kerr, Hockeimer told him that he could return to work at a non-PSR level; however, no specific job was discussed. Kerr states that in January 1984, Hockeimer guaranteed him that he would be recalled to a PSR position. In October 1984, however, Hockeimer advised that there were no PSR positions available.
Individual defendants in this lawsuit, in addition to Sunblad and Hockeimer, include FACC vice-president Kenneth L. Rose, FACC's director of industrial relations, Robert Macin, Kerr's supervisor, Raymond A. Ezekiel, and FACC general manager, John L. Ruby. According to Kerr, Macin said in 1984 that he would see if any PSR position was available; Rose said in 1985 that he would "keep an eye open" for openings; Ezekiel promoted one person to a PSR level position without considering Kerr; and Ruby released a written directive in 1985 stating that in filling vacancies, "primary consideration" would be given to FACC employees "before recruiting external candidates."
*1557 FACC is a wholly owned subsidiary of defendant Ford Motor Company. Hockeimer is an officer of both corporations, serving as president and chief executive officer of FACC and as a vice-president of Ford Motor Company.
Other facts will be discussed where relevant.
PROCEDURAL BACKGROUND
Kerr filed this action on January 30, 1984, the day the two-year recall period expired without Kerr's having been recalled to work. He did not, however, serve the summons or pursue the lawsuit until informal discussions with the individual defendants failed to result in a rehiring.
After one demurrer had been sustained with leave to amend, the parties stipulated to dismiss with prejudice five of Kerr's twelve causes of action. The remaining causes of action alleged fraud and bad faith which induced Kerr to accept layoff, fraud and bad faith regarding entitlement to recall and rehire, and conspiracy and interference with prospective economic advantage.
Defendant Hockeimer appeared specially to object to personal jurisdiction in California. His motion to quash service of summons was granted and on May 19, 1987, Kerr's motion for reconsideration was denied.
On September 25, 1987, defendant Ford Motor Company moved for summary judgment on each of Kerr's three causes of action against it, i.e., conspiracy, interference with prospective economic advantage, and fraud. The motion was granted and Kerr's motion for reconsideration was denied.
In January 1988 the remaining individual defendants moved for summary judgment on the two causes of action against them, i.e., conspiracy and fraud. Again, the motion was granted and Kerr's motion for reconsideration was denied.
On June 3, 1988, Kerr filed a motion to ascertain the financial condition of FACC, the only defendant remaining in the lawsuit. The court denied the motion on the ground that it was premature until the jury decided the issue of fraud.
On June 28, 1988, a hearing was held on FACC's motion for summary judgment on each of Kerr's causes of action against it: fraud and bad faith regarding Kerr's layoff, fraud and bad faith regarding entitlement to recall, and conspiracy. After concluding that Kerr was not discharged and that FACC had no duty to consider Kerr for recall during the period of his *1558 layoff, the court granted FACC's motion. Notice of entry of the three aforementioned summary judgments was filed on August 3, 1988. Kerr appeals from the judgment and from the order denying his motion for disclosure of FACC's financial condition.
ANALYSIS
A. The Recall Policy
FACC asserts that Kerr was eligible for recall, as opposed to entitled to recall, only within the Western Development Laboratories (WDL) Division of FACC, only for a two-year period following his layoff, and only for positions for which he was qualified. Kerr, on the other hand, contends that the company's recall policy was of unlimited duration for any position for which he was qualified, and was not limited to the WDL component of FACC.
The trial court apparently determined that FACC's recall policy, whatever it was, was discretionary. (1) Because the interpretation of a writing "`where extrinsic evidence is completely lacking or the quantum and quality thereof does not in reason place the trial judge in a better position to form an accurate interpretation of writings'" (Estate of Shannon (1965) 231 Cal. App.2d 886, 891 [42 Cal. Rptr. 278]) is a question of law, we shall independently determine the meaning of FACC's written recall policy. (Davies Machinery Co. v. Pine Mountain Club, Inc. (1974) 39 Cal. App.3d 18, 23 [113 Cal. Rptr. 784]; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866 [44 Cal. Rptr. 767, 402 P.2d 839].)
In a 13-page policy statement covering "Termination Non-Represented Salaried Employees," FACC explains that the "types of termination are Quit, Layoff, Release, Discharge, Retirement and Death. The type of termination controls, without exception the employe's [sic] eligibility for reemployment, reinstatement, and certain benefits, such as separation allowance and retirement payments...." (Italics added.) On pages 3 through 4 of the statement, "layoff" is described. It begins, "A laid off salaried employe will be Reinstated if reemployed within two years after termination or within a period equal to the employe's length of continuous Corporate service, whichever is shorter." (Italics added.)
The report then goes on to describe four different types of "layoff." The first, and the pertinent one here, is "Reduction in Force" which is described as follows: "Employes will be laid off if they are terminated by the Corporation because of a reduction in force caused by such conditions as a declining volume of business, discontinuation or consolidation of operations, reorganization, *1559 increased efficiency of operations, loss or cancellation of a contract [etc.]" (Italics added.)
On November 1, 1978, the same day the general policy statement covering termination was issued, a second eight-page statement dealing exclusively with the topic "Reduction in Force and Recall of Non-Represented Salaried Employes" was also issued. The report states that "Each component [in this case, WDL] must develop local Reduction in Force and Recall Operating Policies consistent with these guidelines.... These Operating Policies should: ... [¶] F. Provide for a recall practice under which employes on the recall list are offered reinstatement in their former or comparable positions when they become available in the component, and are given active consideration for other positions for which qualified in the local geographic area." (Italics added.)
In the section entitled "Recall of Laid Off Employes," the policy provides: "Every Corporation location is responsible for maintaining a list of employes eligible for recall. The list should include laid off employes who are still eligible for reinstatement and those transferred to hourly status in lieu of layoff. All actions concerning each employe on the recall list should be documented. Documentation should include information on each instance the employee is actively considered for an opening within the component, as well as all contacts with the employe concerning available openings." (Italics added.)
The recall policy sets forth the order in which openings are to be filled: "Each component will recall laid off employes to position openings for which they are qualified.... After having recalled all of its own qualified laid off employes, a Corporation component must draw upon qualified laid off employes from other Corporation components in the local geographic area before employing agency personnel, temporary employes or applicants." (Italics added.)
Finally, the policy provides, in the single sentence quoted by Kerr for the proposition that the recall period is indefinite, that "Management Personnel Roll and above employes who have been laid off or reduced from former MPR and above positions and were rated `Satisfactory' or better at the time of layoff or reduction in grade will be recalled to positions for which they are qualified when those positions become available."
When one examines the policy as a whole, it becomes clear that both FACC and Kerr have taken excerpts out of context, totally distorting the true recall policy. For example, at the summary judgment motion hearings and again on appeal, FACC argues that the whole of wrongful "termination" *1560 law is irrelevant here because Kerr essentially quit by choosing layoff over demotion. This argument, which apparently was considered by the trial court, flies in the face of FACC's own policy which defines termination inter alia as layoff. Likewise, Kerr takes one sentence from the policy to claim that he is entitled to recall without any time or geographic limitations.
(2a) We construe the recall policy as requiring the WDL component of FACC to hire Kerr to any PSR-level position which opened up for which he was qualified during the period January 31, 1982, through January 31, 1984. The policy specifically required the component to reinstate all qualified laid off employees before it could consider filling the position with better qualified non-WDL component laid off employees, current employees, or outside applicants. Moreover, the policy required other components of FACC within the "local geographic area" to consider Kerr for positions which became available before those positions could be filled by promotion or transfer within FACC or by outside applicants. The only candidates with priority over Kerr would be laid off employees from the other FACC component.
Before summary judgment could properly have been granted, FACC would have had to present undisputed evidence that there were no PSR-level positions opened up at the WDL component or at other FACC components within the local geographic area during the two-year period following Kerr's layoff, or that Kerr was indisputably unqualified for the openings that did occur. With respect to the first question, undisputed evidence was presented that there were PSR-level openings both at the WDL component and at other FACC locations.
With respect to the latter question, it is significant to note that FACC did not even address the question of Kerr's qualifications in its separate statement of undisputed facts in support of its motion for summary judgment. In its brief on appeal, FACC states that "plaintiff nowhere offers a single fact demonstrating that he had the technical skills, background, or security clearances necessary to undertake even one of the positions subsequently available at FACC. Plaintiff's mere recitation of his length of service at FACC or of his favorable performance evaluations as a manufacturing manager [citation] is entirely insufficient to make out any showing that there were positions available for which he was qualified."
FACC misconstrues the burden of proof on a motion for summary judgment. (3) It is the party seeking summary judgment, here FACC, who has the burden initially to establish evidentiary facts of every element necessary to entitle it to judgment. (Vesely v. Sager (1971) 5 Cal.3d 153, 169 [95 *1561 Cal. Rptr. 623, 486 P.2d 151], disapproved on other grounds in Strang v. Cabrol (1984) 37 Cal.3d 720, 724 [209 Cal. Rptr. 347, 691 P.2d 1013].) That burden is not affected by the opponent's failure to controvert. (Ibid.) (2b) FACC's burden was to disprove the complaint (Conn v. National Can Corp. (1981) 124 Cal. App.3d 630 [177 Cal. Rptr. 445]), not simply to show that Kerr lacked evidence to back up his claims. (Barnes v. Blue Haven Pools (1969) 1 Cal. App.3d 123, 126 [81 Cal. Rptr. 444].)
FACC submitted no evidence in its moving papers on the issue of Kerr's qualifications for the 10 openings at the WDL component of FACC or for other openings at FACC components within the "local geographic area." In its reply papers, FACC submitted defendant Robert Macin's declaration in which he opined that Kerr lacked the technical skills, background and security clearances necessary for the WDL positions. The declaration, however, emphasized that the persons hired were more qualified and better educated than Kerr, not that Kerr was totally unqualified. As noted above, the recall policy guaranteed laid off employees priority to openings for which they were qualified over other, even better qualified, candidates for the position. Significantly, Macin's declaration does not discuss openings at other FACC components within the "local geographic area." Whether Kerr was qualified for any of the openings within the recall period was a triable issue of fact which precluded the grant of summary judgment. (Code Civ. Proc. § 437c, subd. (c).)
(4) In an attempt to avoid this issue, FACC argues that it was under no duty to follow its own recall/rehire policies and that hiring decisions at top management levels are properly left to management's discretion. FACC also contends that there is no cause of action for breach of a good faith duty to rehire. Both contentions are without merit.
In Hepp v. Lockheed-California Co. (1978) 86 Cal. App.3d 714, 716 [150 Cal. Rptr. 408], plaintiff Hepp was "laid off suitable for rehire." He presented evidence that Lockheed had a well-established, but unwritten, policy that when a job opening occurred, it must be offered to those persons who within two years had been laid off suitable for rehire and who were qualified for the position before it could be filled by promotion or transfer within the company or by a new employee. Hepp also presented evidence that within the two-year period, there were six openings for his former position. Lockheed conceded that it "`did violate its own policies and/or rules'" but argued that the rules were discretionary and were merely "`directives to assist supervision.'" (Id. at p. 717.) The Hepp court held that the inference could be drawn that "the rehiring policy was not merely a guideline for the benefit of management but a positive inducement for employees to take and *1562 continue employment with defendant" (id. at p. 719) and that therefore there was a triable issue of fact as to the intent of the regulations.
In the instant case, Kerr's position is stronger than Hepp's, buttressed as it is by FACC's written recall policy and by Sunblad's explanation of that policy to Kerr as an inducement to Kerr to accept layoff status.
In Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 [254 Cal. Rptr. 211, 765 P.2d 373], the California Supreme Court observed that "an allegation of breach of written `Termination Guidelines' implying self-imposed limitations on the employer's power to discharge at will may be sufficient to state a cause of action for breach of an employment contract. Pugh [citation] is not alone in holding that the trier of fact can infer an agreement to limit the grounds for termination based on the employee's reasonable reliance on the company's personnel manual or policies. (See, e.g., [three citations omitted]; Toussaint v. Blue Cross & Blue Shield of Mich. [1980] 292 N.W.2d at p. 892 [personnel manual provisions can give rise to contractual rights without showing of express mutual agreement]; Morris v. Lutheran Medical Center (1983) 215 Neb. 677 [parallel citation] [employer bound by published `Policy and Procedures']; cf. Hepp v. Lockheed-California Co. [,supra,] 86 Cal. App.3d 714, 719 [parallel citation] [unwritten but `well established' policy regulating rehiring of employees laid off for lack of work is enforceable].)" (Id. at pp. 681-682.)
Here Kerr has pleaded facts which, if proved, may be sufficient for a jury to find that FACC breached its personnel policies dealing with termination and recall of laid off employees. If he prevails, Kerr will be entitled to contract damages for his employer's breach of the implied covenant of good faith and fair dealing. (Foley, supra, 47 Cal.3d at p. 700; Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 976 [258 Cal. Rptr. 592, 772 P.2d 1059].)
B. Claims Against Ford Motor Company
Kerr alleges three causes of action against the parent company of FACC: (1) conspiracy to defraud; (2) fraud; and (3) interference with prospective economic advantage. (5a) Based on undisputed evidence of Ford Motor Company's lack of involvement in Kerr's termination from FACC or in FACC's subsequent alleged failure to consider Kerr for recall, we hold that summary judgment was properly granted.
Hockeimer declared that his communications with Kerr were solely in his capacity as an officer and director of FACC, and the other defendants *1563 were not employees of Ford Motor Company. Kerr did not dispute these facts in his deposition:
"Q: Do you have any reason to believe that anyone at Ford Motor Company conspired in any way against you?
"A: No....
"Q: Did Mr. Hockeimer at any time in any of his discussions tell you that he was talking to you in any other capacity than as President of Ford Aerospace and Communications Corporation?
"A: No.
"Q: Did you believe that he was talking to you with regard to Ford Motor Company, as opposed to Ford Aerospace and Communications Corporation?
"A: ... No."
In opposing Ford Motor Company's summary judgment motion, Kerr submitted a declaration in which he stated: "Since my depositions... [,] I have concluded that HENRY HOCKEIMER was clearly serving in a dual capacity as officer and employee of both [FACC] and FORD MOTOR COMPANY.... [¶] I now strongly believe, after reviewing documents and depositions, that FORD MOTOR COMPANY and [FACC] developed a strategy to terminate executive employees before they reached age 53." He goes on to declare that in a staff meeting, his supervisor Ezekiel told him that "`FORD had done an analysis comparing FORD and General Motors, and found that FORD had nearly twice the PSR to non-PSR ratio that General Motors had. This was considered a problem, and FORD was putting pressure on Ford Aerospace to correct the problem....'"
This evidence is insufficient to raise a triable issue of fact as to Ford Motor Company's involvement in Kerr's termination and his failure to be recalled during the two-year period following Kerr's layoff. (6) First, the normal policy of "liberal construction" given to declarations opposing summary judgment does not apply where the declaration contradicts the declarant's earlier admissions in a deposition. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21 [112 Cal. Rptr. 786, 520 P.2d 10], disapproved on other grounds in Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 944 [154 Cal. Rptr. 503, 593 P.2d 200]; Hoover Community Hotel Development Corp. v. Thomson (1985) 167 Cal. App.3d 1130 [213 Cal. Rptr. 750].) (7) Secondly, it is well established *1564 that a plaintiff's "suspicions of improper motives ... primarily based on conjecture and speculation" are not sufficient to raise a triable issue of fact to withstand summary judgment. (Crosier v. United Parcel Service, Inc. (1983) 150 Cal. App.3d 1132, 1139 [198 Cal. Rptr. 361].) (5b) Finally, the hearsay statement of Ezekiel does not constitute competent evidence within the meaning of Code of Civil Procedure section 437c.
(8) With respect to Kerr's claim that Ford Motor Company conspired to defraud him, it is well settled that "there is no separate tort of civil conspiracy, and there is no civil action for conspiracy to commit a recognized tort unless the wrongful act itself is committed and damage results therefrom." (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 44, p. 107, and cases cited therein [italics in original]; Doctors' Co. v. Superior Court (1989) 49 Cal.3d 39, 44-45 [260 Cal. Rptr 183, 775 P.2d 508].) Since Kerr has failed to present competent evidence demonstrating fraud on the part of Ford Motor Company, the cause of action for conspiracy likewise fails.
C. Claims Against Individual Defendants
The two causes of action alleged against the individual defendants were conspiracy to defraud and fraud. (9) With respect to the conspiracy cause of action, "`[i]t is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation....'" (Shasta Douglas Oil Co. v. Work (1963) 212 Cal. App.2d 618, 624 [28 Cal. Rptr. 190]; Zumbrun v. University of Southern California (1972) 25 Cal. App.3d 1, 12-13 [101 Cal. Rptr. 499, 51 A.L.R.3d 991]; Wise v. Southern Pacific Co. (1963) 223 Cal. App.2d 50, 72-73 [35 Cal. Rptr. 652].) All of the individual defendants were employees of and, according to the complaint, agents of defendant FACC. Because a corporation cannot conspire with its agents, the conspiracy charge was properly dismissed.
(10a) With respect to the fraud claim, there was only one representation made prior to Kerr's layoff. Sunblad advised Kerr (1) that there were no PSR positions available from October 12, 1981, when Kerr proposed the reorganization, until his layoff on January 31, 1982, and (2) that plaintiff was eligible for full reinstatement or recall for a two-year period. Both of these statements were true. (11) It is fundamental that in order to state a cause of action for fraud, there must be (1) a false representation of a material fact, (2) made recklessly or without reasonable ground for believing its truth, (3) with intent to induce reliance thereon, (4) on which the *1565 plaintiff justifiably relies, (5) to his detriment. (Chavez v. Citizens for a Fair Farm Labor Law (1978) 84 Cal. App.3d 77, 80, fn. 4 [148 Cal. Rptr. 278], italics in original.)
(10b) There was at most one representation made to Kerr during the two-year recall period. That representation was made by Hockeimer who is no longer an individual defendant in this suit.[2]
All the remaining representations occurred after the expiration of the two-year recall period. By January 31, 1984, Kerr's cause of action against his employer for failure to recall him pursuant to its written recall policy had fully matured. After the two-year period, the company no longer had an obligation to reinstate him, and the various representations were gratuitous promises not supported by consideration. Additionally, Kerr suffered no damages as a result of these various representations. He may have delayed prosecuting his lawsuit, but he did not delay in filing it. Thus, no statutes of limitation were missed, and Kerr has failed to establish any other prejudice.
The trial court properly granted summary judgment in favor of individual defendants Sunblad, Rose, Macin, Ezekiel and Ruby.
D. Motion for Discovery of FACC's Financial Condition
Finally, Kerr contends that the trial court erred when it, construing revised Civil Code section 3295, denied discovery of FACC's financial condition as premature. Subdivision (c) of section 3295 provides, in pertinent part: "Upon motion by the plaintiff supported by appropriate affidavits and after a hearing, ... the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294." (Italics added.) Civil Code section 3294 authorizes an award of punitive damages only where it is shown by clear and convincing evidence that the defendant is guilty of oppression, fraud, or malice.
(12) In this case, the only potentially viable fraud claim is that based upon the conversation Kerr allegedly had with Hockeimer in December 1983. Kerr has not in any way "established that there is a substantial probability" that he will prevail on this fraud claim. For this reason, the *1566 court's decision denying discovery of FACC's financial condition was correct even if the ground upon which the court based its decision (i.e., that the motion was premature) was incorrect. (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 259, p. 266.)
DISPOSITION
The judgment is reversed with respect to defendant FACC. In all other respects, the judgment is affirmed. Each side to bear its own costs.
Capaccioli, Acting P.J., and Bamattre-Manoukian, J., concurred.
A petition for a rehearing was denied January 30, 1990.
NOTES
[1] Hockeimer was dismissed from this action with prejudice following his motion to quash service of summons due to lack of personal jurisdiction. Kerr has not appealed from that order.
[2] Hockeimer's representations, however, if proven, may be imputed to his employer, FACC.
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United States Court of Appeals,
Eleventh Circuit.
No. 97-8417.
Salvador MAGLUTA, Petitioner-Appellant,
v.
F.P. Sam SAMPLES, Michael W. Garrett, et al., Respondents-Appellees.
Dec. 10, 1998.
Appeal from the United States District Court for the Northern District of Georgia. (No. 1:94-CV-
2700-ODE), Orinda D. Evans, Judge.
Before BIRCH and BARKETT, Circuit Judges, and HANCOCK*, Senior District Judge.
PER CURIAM:
Magluta appeals the district court's dismissal of his Bivens action under the fugitive
disentitlement doctrine. Because we find no nexus between Magluta's fugitive status and his civil
action, we conclude that the district court abused its discretion in dismissing Magluta's complaint
on that basis.
I. Factual and Procedural History
In April 1991, a grand jury in the Southern District of Florida indicted Salvador Magluta on
twenty-four drug trafficking and conspiracy charges. Magluta was arrested in October 1991. In
1994, while being held in the U.S. Penitentiary at Atlanta pending trial on those charges, Magluta
filed a Bivens action in the U.S. District Court in the Northern District of Georgia against various
prison officials challenging the conditions of his confinement. The suit was stayed pending the
outcome of Magluta's criminal trial in Florida.
*
Honorable James H. Hancock, Senior U.S. District Judge for the Northern District of
Alabama, sitting by designation.
In early 1996, Magluta advised the district court in Georgia that he had been acquitted of all
the drug trafficking and conspiracy charges, and the stay in the Bivens action was lifted. Around
that time, Magluta was indicted in the Southern District of Florida for passport fraud and was
released on bail in February of 1996. Near the end of his February, 1997 trial on this charge,
Magluta failed to appear in court. A warrant for Magluta's arrest was issued on February 6, 1997.
The criminal trial continued in his absence, and Magluta was convicted on February 7, 1997.
On February 27, 1997, the prison officials (defendants in the Bivens action) supplemented
a previously filed but unruled on motion to dismiss to include the fugitive disentitlement doctrine
as grounds for dismissal. Magluta, a fugitive, did not file an opposition to the supplemented motion,
although a copy of the supplement to the motion was served upon his counsel of record who had
earlier opposed the unruled on motion to dismiss based on other grounds. The district court granted
the motion and dismissed Magluta's complaint on March 25, 1997, limiting its ruling to the fugitive
disentitlement doctrine.
Magluta was recaptured on April 13, 1997. On April 23, 1997, Magluta simultaneously filed
a notice of appeal from the district court's March 25, 1997 order and judgment and a Rule 60 motion
in the district court for relief from judgment. The district court dismissed Magluta's motion for relief
from judgment on jurisdictional grounds. Magluta appeals the district court's dismissal of his
action.1
II. Standard of Review
The district court's power to dismiss a cause "is an inherent aspect of its authority to enforce
its orders and insure prompt disposition of lawsuits." Jones v. Graham, 709 F.2d 1457, 1458 (11th
1
Magluta conceded in oral argument that his notice of appeal does not encompass the district
court's ruling on his Rule 60 motion, and he withdrew his reliance upon that ruling in support of
his appeal.
Cir.1983). The standard of review on appeal from the dismissal of a lawsuit on fugitive
disentitlement grounds is abuse of discretion. See id.; see also Prevot v. Prevot, 59 F.3d 556, 562
(6th Cir.1995) (discussing equitable power of court to disentitle fugitives). Therefore, the issue
before the Court is whether the dismissal of a civil action because of the plaintiff's status as a
fugitive in an unrelated criminal matter constitutes an abuse of discretion.
III. Discussion
The fugitive disentitlement doctrine limits access to courts by a fugitive who has fled a
criminal conviction in a court in the United States. Although traditionally applied by the courts of
appeal to dismiss the appeals of fugitives, the district courts may sanction or enter judgment against
parties on the basis of their fugitive status. See generally Prevot v. Prevot, 59 F.3d 556, 564-65 (6th
Cir.1995) (citing cases involving the dismissal of civil actions on fugitive disentitlement grounds).
The rationales for this doctrine include the difficulty of enforcement against one not willing to
subject himself to the court's authority; the inequity of allowing a fugitive to use court resources
only if the outcome is an aid to him; and the need to avoid prejudice to the nonfugitive party. See
Degen v. United States, 517 U.S. 820, 824-25, 828, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996); United
States v. Barnette, 129 F.3d 1179, 1183 (11th Cir.1997). In accordance with these rationales, the
dismissal of a civil action on fugitive disentitlement grounds requires that (1) the plaintiff is a
fugitive; (2) his fugitive status has a connection to his civil action; and (3) the sanction employed
by the district court, dismissal, is necessary to effectuate the concerns underlying the fugitive
disentitlement doctrine. See Degen, 517 U.S. at 829, 116 S.Ct. 1777; Ortega-Rodriguez v. United
States, 507 U.S. 234, 242-49, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993).
There is no dispute that Magluta was a fugitive at the time the district court dismissed the
action. However, the Court finds no nexus between Magluta's fugitive status and his Bivens action.
Magluta's lawsuit challenged the conditions of his previous confinement in Georgia. He became a
fugitive after that confinement ended, during an unrelated criminal trial in Florida. The record does
not indicate that Magluta failed to comply with any order issued by the district court. Because there
was no connection between Magluta's fugitive status and his civil lawsuit, the district court abused
its discretion when it dismissed Magluta's complaint.2
We note that we may not reverse a judgment of the district court if it can be affirmed on any
ground, regardless of whether those grounds were used by the district court. See, e.g., Helvering v.
Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937); Rowe v. Schreiber, 139 F.3d 1381,
1382 n. 2 (11th Cir.1998). Local Rule 7.1(b) of the Northern District of Georgia (formerly Rule
220-1(b)) provides that the failure to file a response to a motion within ten days after service of the
motion "shall indicate that there is no opposition to the motion." Because Magluta, though
represented by counsel upon whom a copy of the supplement to the motion to dismiss was served,
failed to respond to the February 27, 1997 supplement to the motion to dismiss, the district court
could have dismissed the action under this rule. The Court recognizes, however, that the granting
of a motion on these grounds is not automatic and rather lies within the discretion of the district
judge. Since the exercise of that discretion focuses on a local rule of the district court, we will
remand the case so that the district court may determine whether dismissal would be appropriate
under its local rules of civil procedure.
IV. Conclusion
A district court may not dismiss a civil complaint under the fugitive disentitlement doctrine
2
Due to this finding, the Court need not reach the issue of whether dismissal was necessary to
effectuate the concerns underlying the fugitive disentitlement doctrine. However, the Court
recognizes that dismissal is often an "excessive response" to the concerns underlying the fugitive
disentitlement doctrine. See Degen, 517 U.S. at 829, 116 S.Ct. 1777.
unless there exists a nexus between the plaintiff's fugitive status and his civil lawsuit and dismissal
is necessary to effectuate the concerns underlying the doctrine. The district court abused its
discretion in dismissing Magluta's complaint, because there was no connection between Magluta's
fugitive status and his Bivens action. Therefore, we REVERSE the district court's order of dismissal
and REMAND the case for further proceedings consistent with this opinion. On remand, the district
court may, in its discretion, dismiss the complaint if appropriate under the local rules of civil
procedure.
SO ORDERED.
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5 Mich. App. 566 (1967)
147 N.W.2d 458
JOSEPH
v.
TOWNSHIP OF GRAND BLANC.
Docket No. 1,659.
Michigan Court of Appeals.
Decided January 10, 1967.
Leave to appeal denied March 15, 1967.
Ronald L. Joseph, in propria persona.
Michael W. Evanoff, for defendant Murphy.
McTaggart & Lattie (Lyndon J. Lattie, of counsel), for defendants Township of Grand Blanc, W. Kenneth Harris, and William Temple.
Leave to appeal denied by Supreme Court March 15, 1967. See 379 Mich 755.
N.J. KAUFMAN, J.
On April 28, 1965, the Grand Blanc township board, acting at a regular meeting, passed a zoning ordinance which provided that certain *569 property was to be rezoned for commercial building. Plaintiff is a resident of the township of Grand Blanc and was present at the board meeting. At this meeting, plaintiff, a qualified elector, attempted to vote on the question of whether or not this zoning ordinance should be passed. The board did not count plaintiff's vote.
Plaintiff brought the present suit, praying that the ordinance be enjoined from taking effect and that it be declared null and void. The trial court held that the plaintiff was not entitled to relief since his property was located about 1 mile from the rezoned property and he did not allege any special damage. The court granted defendants' motion for summary judgment since plaintiff could not maintain the action and was not an aggrieved party.
Plaintiff contends that he had a right to vote[1] at the board meeting and because this was denied to him the ordinance should be declared null and void. In his brief, plaintiff cites historical authority to show the importance of annual township meetings and the right of each qualified elector of the township to vote at such a meeting. However, plaintiff fails to distinguish between the annual township meeting and the meeting of the township board. In this distinction lies the answer to plaintiff's first contention.
Michigan statutes provide for the formation of townships. All township officers are elected at the first township meeting.[2] The township officers and trustees constitute the township board,[3] which is *570 charged with the responsibility of transacting township business at regular board meetings. Citizens of the township have the right to be present and to be heard at the board meeting, but the right to vote at such a meeting is not provided for in the statute.[4] The township board may enact ordinances for the purpose of zoning.[5] The plaintiff has conceded that such an ordinance authorizing the township board to provide for zoning has been duly enacted by defendant township.
Reference to these statutes shows that plaintiff's contention is without merit. Plaintiff was not attending the annual township meeting but rather he was attending a meeting of the township board. This board is elected by the qualified voters to transact business for the community. It is specifically empowered to pass zoning ordinances.
We hold that plaintiff, while given the right to vote at the annual township meeting, did not have the right to vote at the township board meeting.
The plaintiff next contends that the court erred in granting defendants' motion for summary judgment on the basis that plaintiff, not being an abutting property owner, failed to show any special damage.
This Court has recently held in Marcus v. Busch (1965), 1 Mich App 134, 136 that "the consensus of authority throughout the country is that to have any status in court to attack the actions of a zoning board of appeals, the party must be an aggrieved party, and said party must be more than a resident of the city."
In order to maintain this action, plaintiff, a nonabutting property owner, must allege and prove *571 that he has suffered a substantial damage which is not common to other property owners similarly situated. Victoria Corporation v. Atlanta Merchandise Mart, Inc. (1960), 101 Ga App 163 (112 SE2d 793). See comment in 64 MLR 1070, 1079. In his complaint, plaintiff claims that because of this rezoning, traffic will be increased on the dirt road fronting on his property; because of this, he will suffer economic and aesthetic losses. The record further discloses that the question of whether or not plaintiff suffered special damage was before the court for a period in excess of 5 months, during which time special damages could have been alleged.
Other jurisdictions have held that a mere increase in traffic with its incidental inconvenience did not constitute a substantial damage and, therefore, the plaintiff was not considered to be an aggrieved party.[6] The reasoning in the cases is that such increase in traffic congestion, with its attendant difficulties for property owners whose property fronts on the street, is a matter which addresses itself to the police authorities of the municipality rather than to the zoning authorities.
This Court concurs in this reasoning in deciding that plaintiff did not allege that he had suffered any special damages, which were different in kind from those suffered by the community, so as to qualify as an aggrieved party. The trial court correctly granted defendants' motion for summary judgment.
The plaintiff's final contention on appeal is that he has a right to a jury trial even though seeking injunctive relief. This question need not be decided *572 since the foregoing analysis disposes of plaintiff's claim.
Affirmed. Costs to appellee.
QUINN, P.J., and McGREGOR, J., concurred.
NOTES
[1] This contention is based on the language of CL 1948, § 41.102, as amended by PA 1963 (2d Ex Sess), No 1 (Stat Ann 1965 Cum Supp § 5.151).
[2] CL 1948, § 46.16 (Stat Ann 1961 Rev § 5.339). See, also, Township of Comins v. Township of Harrisville (1881), 45 Mich 442.
[3] CLS 1961, § 41.70 (Stat Ann 1961 Rev § 5.62).
[4] CLS 1961, § 41.72b (Stat Ann 1961 Rev § 5.64[2]).
[5] CL 1948 and CLS 1961, §§ 125.271-125.298 (Stat Ann 1958 Rev and Stat Ann 1965 Cum Supp §§ 5.2963[1]-[28]).
[6] Victoria Corporation v. Atlanta Merchandise Mart, Inc., supra; Lampinski v. Rhode Island Racing & Athletics Commission (1962), 94 RI 438 (181 A2d 438); Marcus v. Montgomery County Council (1964), 235 Md 535 (201 A2d 777).
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765 F.2d 150
U.S.v.Hunter
84-1338
United States Court of Appeals,Ninth Circuit.
6/17/85
1
N.D.Cal.
AFFIRMED
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THE ~TORNEY GENERAL
OF TEXAS
Honorable Rick Hamby Opinion No. JR-1221
District Attorney
Howard County Courthouse Re: Division of taxing au-
Big Spring, Texas 79720 thority over certain severed
mineral interests between two
Honorable Mark Edwards contiguous underground water
Reagan County Attorney conservation districts
P. 0. Box 924 (RQ-1927), (RQ-1983)
Big Lake, Texas 76932
Dear Mr. Hamby and Mr. Edwards:
This opinion responds to the issues you each raise
under section 14 of Senate Bill 1634, which was enacted by
the legislature in 1989. Acts 1989, 71st Leg., ch. 653, at
- 2153-55. Senate Bill 1634 created the Santa Rita Under-
ground Water Conservation District [hereinafter the Santa
Rita district] in Reagan County, Texas. Section 14 of the
bill excludes certain lands from the Santa Rita district.
Your requests focus on the ad valorem taxation of the
severed mineral interests in the excluded lands that were
annexed into the Glasscock County Underground Water
Conservation District [hereinafter the Glasscock County
district].1
We understand that some of the Reagan County landowners
whose lands have been annexed into the Glasscock County
district did not own all of the mineral rights in the
annexed lands. You each ask whether the Santa Rita district
or the Glasscock County district is authorized to tax the
severed mineral interests since those interests were not
1. In 1981 the legislature created the Glasscock
County district and provided that its boundaries were
identical to those of Glasscock County. Acts 1981, 67th
Leg., ch. 489, 55 l-2, at 2104. Glasscock County is located
immediately north of Reagan County.
Honorable Rick Hamby - Page 2 (JM-1221)
Honorable Mark Edwards
owned by the persons who filed the petitions for annexa-
tion.2
Section 14(a) exempts from the district "any lands
. . . annexed into" the Glasscock County district under
section 51.714 of the Water Code prior to June 14, 1989, the
effective date of the act. Section 51.714 permits an "owner
of land" to file with the Glasscock County district 'Ia
petition requesting that'the land described by metes and
bounds in the petition be included in the district.1'
Section 14(b), which establishes another means of ex-
eluding lands from the Santa Rita district, provides in part
that:
(1) Within one calendar year from the
effective date of this Act, the owner of land
who owns land with[in] a delineated critical
area3 pursuant to Section 52.053, Water Code,
and whose lands are within the district may
file with the board a netition recuestins
that the owner's land be- excluded from the
district. The petition must describe the
land by legal description or by metes and
bounds or by lot and block number if there is
a recorded plat of the area to be excluded
from the district. This petition must be
signed and notarized by the owner of the
land.
(2) The board shall accept the petition
immediately and shall grant exclusion of the
land described in the petition, the only
requirement for review by the board being
that of conformity to Subdivision (1) of this
subsection. (Emphasis added.)
2. We have received correspondence indicating that
the Santa Rita district asserts no right to tax mineral
interests owned by the surface owners whose petitions for
annexation were granted.
3. A lBcritical arean is an area designated and delin-
eated by the Texas Water Commission as an area experiencing
or expected to experience critical groundwater problems.
Water Code 5 52.001(14).
P. 6464
Honorable Rick Hamby - Page 3 (JM-1221)
Honorable Mark Edwards
Except for lands that have been excluded under either
section 14(a) or (b), the Santa Rita district includes all
territory located within Reagan County. Acts 1989, 71st
Leg., ch. 653, 5 3, at 2153.
We have received correspondence indicating that some
Reagan County landowners timely filed petitions for annexa-
tion under section 51.714 of the Water Code with the
Glasscock County district and that those petitions were
granted prior to June 14, 1989. The sample petitions for
annexation that we have received refer to section 51.714 and
request the annexation of "the land described by metes and
bounds" in the exhibits attached to the petitions. The
metes and bounds descriptions neither expressly include nor
exclude minerals in or under the described land. We
understand that the sample petitions are typical of the
petitions filed under section 14(a).
We are also advised that some Reagan County landowners
timely filed petitions under section 14(b) to exclude their
lands from the Santa Rita district. We understand that
nearly all of the landowners who filed section 14(b) peti-
tions for exclusion with the Santa Rita district have also
,- filed petitions with the Glasscock County district for
annexation of the excluded lands.
The samples that we have received of annexation peti-
tions filed by landowners whose lands were excluded pursuant
to section 14(b) refer to section 52.521 of the Water Code,
which authorizes the owner of land contiguous to an under-
ground water district to file a petition for annexation.4
4. Section 52.521, along with the rest of subchapter K
of chapter 52, was added to the Water Code by Senate Bill
1212 and took effect September 1, 1989. Acts 1989, 71st
Leg., ch. 936, 5 14 at 3998, § 21, at 4001. Subchapter K
provides for the annexation of territory to and consolida-
tion of districts. u. 5 14, at 3998-4000. Subchapter K is
applicable to underground water conservation districts
created by special law. Water Code 5 52.005 (subchapters D,
J, and K applicable to special law districts). Prior to the
passage of Senate Bill 1212, some underground water con-
servation districts relied on the annexation provisions of
chapter 51 of the Water Code, which covers water control
and improvement districts. Section 51.714 is one of those
(Footnote Continued)
D. 6465
Honorable Rick Hamby - Page 4 (JM-1221)
Honorable Mark Edwards
The sample petitions describe the land to be annexed by
metes and bounds and neither expressly include nor exclude
minerals in or under the described land. We understand that
these samples are representative of the annexation petitions
filed with the Glasscock County district by owners of lands
excluded from the Santa Rita district pursuant to section
14(b).5
On April 26, 1989, the Senate Committee on Natural
Resources conducted a public hearing during which it
received testimony on Senate Bill 1634. Two witnesses spoke
briefly in favor of the committee substitute for the bill.
No one spoke against the bill. Senator Bill Sims, the
bill's sponsor, spoke first on behalf of the committee
substitute. His speech focused on section 14, which first
appeared in the committee substitute adopted by the Natural
Resources committee.6 He referred to section 14 as the
agreement negotiated between the two districts that would
allow members of the farming community to annex into the
Glasscock County district. He stated that the arrangement
in section 14 had been worked out since some of the farming
community felt they could work better with the Glasscock
County district and that the Reagan County district thought
that would work well for both sides. Senator Sims made no
reference to the owners of the severed mineral interests.
(Footnote Continued)
provisions. See. e.a., Acts 1981, 67th Leg., ch. 489, 5 4,
at 2104 (Glasscock County district may exercise powers
permitted by chapter 51).
5. We assume for purposes of this opinion that before
approval of any annexation petition all applicable re-
quirements were satisfied. See. e.s., Water Code 55 51.716,
52.523.
6. Sections 14(a) and 14(b) as added by the Senate
Committee on Natural Resources are almost identical to the
sections as enacted. On May 10, 1989, the House Committee
on Natural Resources reported a substitute for Senate Bill
1634 that modified section 14(b) to permit only owners of
land within delineated critical areas to file petitions for
exclusion. The Senate version of section 14(b) would have
allowed any owner of land within the Santa Rita district to
file a petition for exclusion.
Honorable Rick Hamby - Page 5 (JM-1221)
Honorable Mark Edwards
The next witness at the Senate hearing also did not
mention the owners of the severed mineral interests, and
only stated that section 14 was a closely negotiated
arrangement that was satisfactory to the representatives of
both districts. Public Hearino on S.B. 1634 Before Senate
Comm. on Natural Resources, (April 26, 1989) (testimony of
Tom Massey). The focus in the House was also on the
settlement reached between the districts. Representative
Robert June11 referred to the division of the county between
the northern farming and the southern ranching communities
and stated that the controversy about the northern part of
the county had been settled by the parties. Public Hearinq
on C.S.S.B. 1634 Before House Comm. on Natural Resources,
WY 10, 1989)(testimony of Rep. Robert A. Junell).
We are unaware of any constitutional provision restric-
ting the legislature's choice of boundaries for conservation
districts or properties to include within such districts.
&q Harris Count v Drainase Dist. No. 12 v. Houston, 35
S.W.Zd 118 (Tex. 1931); 36 D. Brooks, Countv and Sn ecial
District Law § 46.4, at 544-45: 5 46.6, at 548-49 (Texas
Practice 1989) (district boundaries may overlap or coincide
with other governmental districts): Attorney General Opinion
/h JM-827 (1987) (holding valid a water district created
primarily to encompass a hazardous waste facility).7 Nor
has any brief submitted in conjunction with your requests
referred us to such a prohibition.
We note that section 14(a) references section 51.714
rather than section 51.718 of the Water Code. In contrast
to section 51.714, which permits a single landowner to
petition for annexation, section 51.718 authorizes two or
more landowners of a defined area of territory to petition
for annexation. A section 51.718 petition must be signed
either by a majority of the landowners in the territory or
by 50 landowners if the territory contains more than 50
7. Although the legislature possesses broad authority
to select the boundaries of and the properties to be in-
cluded within water districts, the legislature has delegated
to the Texas Water Commission only circumscribed powers over
district creation. See Attorney General Opinion JM-1115
(1989) (while commission not authorized to create district
excluding part of the mineral interests, district board
could grant petition excluding such interests after district
creation).
p. 6467
Honorable Rick Hamby - Page 6 (JM-1221)
Honorable Mark Edwards
landowners. Annexation of property within the territory
becomes final upon approval of a majority of the voters in
the territory to be annexed as well as in the annexing
district. Given the liability for district indebtedness and
taxes imposed on annexed territory, we believe that the
legislature would have referenced section 51.718 in section
14(a) if it had intended for property other than that of the
petitioning landowner to be annexed into the Glasscock
County district.8
We are unaware of any case construing either section
51.714 or 51.718 or their predecessors, articles 7880-75 and
7880-75b, V.T.C.S. See Acts 1925, 39th Leg., ch. 25, § 75,
and 5 75b, as added by Acts 1929, 41st Leg., 1st C.S., ch.
82, 5 2. We think, however, that the courts would hold that
both the owners of the surface estates and the owners of the
severed mineral estates are separate landowners for purposes
of section 51.714 and 51.718. See Citv of Cornus Christi v.
Cartwrioht, 288 S.W.2d 836 (Tex. Civ. App. - San Antonio
1956, writ ref'd) (holding owners of severed mineral estates
and owners of surface estates were landowners for district
creation purposes and had to be considered in determining
the sufficiency of a petition filed under article 7880-10
[now section 51.013 of the Water Code]): see also Nueces
Countv Water Control & Imnrovement Dist. No. 4 v. Wilson,
304 S.W.2d 281 (Tex. Civ. App. - El Paso 1957, writ ref'd
n.r.e) (court has jurisdiction to review denial by water
district board of separate petitions filed under article
7880-76 [now section 51.692 of the Water Code] by owners of
surface estates and oil and gas leases to exclude their
interests in lands from the district).
Thus, we think the courts would construe section 51.714
to permit the annexation of lands only owned by the land-
owner filing the petition for annexation.9 To the extent
8. Sections 52.521 and 52.525 are analogous to sec-
tions 51.714 and 51.718. Section 52.521, as mentioned
earlier in the text, authorizes a landowner to file a
petition requesting that "the owner's land be included
within" an underground water district. Section 52.525, in
contrast, permits two or more landowners to petition to
include a defined area of territory.
9. If a petition is filed pursuant to section 51.714
(Footnote Continued)
p. 6468
Honorable Rick Hamby - Page 7 (JM-1221)
Honorable Mark Edwards
the Glasscock County district has annexed prior to June 14,
1989, the lands owned by a landowner who filed an annexation
petition under section 51.714 in accordance with section
14 (a), those lands will be taxable by the Glasscock County
district. The Santa Rita district and not the Glasscock
County district may tax the severed mineral interests in
those lands unless the owners of those severed interests
have filed a section 51.714 petition that was approved in
accordance with section 14(a).10
Section 14(b) reinforces our conclusion with regard to
section 14(a) and its reference to section 51.714. Sub-
division (1) of section 14(b) provides that "the owner of
land" may file 'Iapetition requesting that the owner's land
be excluded" and that the petition "must be signed by and
(Footnote Continued)
the district is permitted but not obligated to add the
petitioner's lands. Water Code 5 51.716. The district may
r therefore refuse to add a severed mineral estate if the
owner of the estate files a petition for annexation under
section 51.714. See also Water Code 5 52.523(a) (board has
discretion to grant or deny section 52.521 petitions filed
by single landowners). Since chapter 52, which governs
underground water districts, does not apply to oil and gas
wells permitted by the Texas Railroad Commission, some
districts may choose to deny such a petition. Water Code
5 52.170(e) (nothing in chapter applies to wells permitted
by commission).
10. Article 8, section 11, of the Texas Constitution
provides that all property shall be taxed in the county
where situated. Texas courts have construed this provision
in light of the common law to mean that governmental
entities may tax only property within their jurisdiction.
See. e.c., Great Southern Life Ins. Co. v. Austin, 243 S.W.
778, 780 (Tex. 1922). Since we determine that the severed
mineral interests in issue have not been excluded from the
Santa Rita district by the action of the surface owners,
Santa Rita possesses the requisite jurisdiction to tax
those severed interests. See also Tax Code 55 21.01, 25.04
(separate estates or interests in lands are listed separa-
tely by name of the owners and taxable if located in the
district on January 1 of the tax year).
p. 6469
Honorable Rick Hamby - Page 8 (JM-1221)
Honorable Mark Edwards
notarized by the owner of the land."11 By using language
referring only to the owner of the land and the owner's
land, the legislature has indicated its intent to authorize
certain landowners to petition for exclusion of only '~their
property from the Santa Rita district. If the legislature
had intended the exclusion of all property rights in the
excluded lands, including those not held by the petitioning
owners, such as the severed mineral interests, we believe
the legislature would have so indicated by referring to
landowners and their territory as in sections 51.718 and
52.523 of the Water Code.
In summary, the Santa Rita district and not the Glass-
cock County district may tax the severed mineral interests
in the Reagan County lands that have been annexed into the
Glasscock County district upon approval of the annexation
petitions filed by the surface owners of those lands.
Nevertheless, the Glasscock County district and not the
Santa Rita district may tax a severed mineral interest if
the owner of the severed interest has filed either a section
51.714 petition that was approved in accordance with section
14(a) or an appropriate annexation petition that was
approved subsequent to the grant of the owner's petition
excluding the interest from the Santa Rita district pursuant
to section 14(b).
11. Although the term l'land'Vor "lands" as used by the
Texas courts generally refers to all interests or estates in
land including those held by the owners of oil and gas
leases and other mineral estates, the context in which the
term is used may determine whether the term is used broadly
to refer to all rights in the land or narrowly to refer
to only certain rights such as surface rights. See. e.q
Avervt v. Grande. Inc., 717 S.W.2d 891, 893-4 (Tex. 1986;;
Holloway's Unknown Heirs v. Whatlev, 131 S.W.2d 89, 91-2
(Tex. 1939). Our review of the legislative history and
language of section 14 shows that the legislature intended
to accomodate the interests of the farming community in
northern Reagan County and accomplished this by authorizing
any landowner holding any estate or interest in lands to act
on his own to have his lands annexed into the Glasscock
County district.
p. 6470
Honorable Rick Hamby - Page 9 (JM-1221)
Honorable Mark Edwards
SUMMARY
The Santa Rita Underground Water District
and not the Glasscock County Underground
Water District may tax the severed mineral
interests in Reagan County lands that have
been annexed into the Glasscock County
district upon approval of annexation peti-
tions filed by the owners of the surface
estates in those lands.
J-k
-~
Very truly yo
JIM
.
MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Celeste Baker
Assistant Attorney General
P. 6471
| {
"pile_set_name": "FreeLaw"
} |
1 Cal.Rptr.3d 422 (2003)
31 Cal.4th 31
71 P.3d 779
Miguel FERNANDEZ, Plaintiff and Appellant,
v.
Truman W. LAWSON, Jr., et al., Defendants and Appellants.
No. S107521.
Supreme Court of California.
July 7, 2003.
*423 Homampour & Associates and Arash Homampour, Beverly Hills, for Plaintiff and Appellant.
Ropers, Majeski, Kohn & Bentley, Michael J. Brady, Redwood City, Elisa Nadeau; Wait & Childs and James W. Colfer, Covina, for Defendants and Respondents.
BROWN, J.
Is a homeowner who hires someone to trim a tree in his yard required to comply with the California Occupational Safety and Health Act of 1973 (OSHA) (Lab. Code, § 6300 et seq.[1]) tree trimming regulations? The question is presented under the somewhat unusual circumstances of this case.
Eliseo Lascano, doing business as Anthony's Tree Service (ATS), offered and was hired to trim an approximately 50-foot palm tree in defendants Truman and Gaile Lawsons' (Lawson) yard for $450. Lawson was not aware a contractor's license was required to trim a tree measuring 15 feet or more (Bus. & Prof.Code, § 7026.1, subd. (c)), and in fact, neither ATS nor plaintiff Miguel Fernandez was licensed. Unless Fernandez is estopped from denying ATS's independent contractor status because of any licensing misrepresentations Lascano may have made to Lawson, the parties assume Fernandez is deemed Lawson's employee by operation of Labor Code section 2750.5.[2] That is because ATS was an unlicensed contractor *424 and the tree trimming at issue required a license. (State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1985) 40 Cal.3d 5, 12-16, 219 Cal.Rptr. 13, 706 P.2d 1146 [Lab.Code, § 2750.5 makes an unlicensed contractor who is performing work for which a license is required an employee of the hirer of the unlicensed contractor, for purposes of workers' compensation].)
We therefore confront two issues in this case. First, must a homeowner, who is an employer solely by virtue of section 2750.5, comply with OSHA tree trimming regulations, or is such tree trimming a "household domestic service" excluded from OSHA? The Courts of Appeal are in conflict on this issue. Second, may an unlicensed contractor's employee be estopped from claiming that he is the employee of the homeowner if he personally made no misrepresentations concerning the contractor's license status?
The Court of Appeal concluded tree trimming was not a household domestic service under the circumstances of this case, and that an unlicensed contractor's employee may be estopped by the contractor's licensing misrepresentations. We disagree on the first issue, and hence need not address the second.
I. Factual And Procedural Background
Fernandez, who had worked for ATS for two years and had at least four years' experience trimming trees, was assigned to trim Lawson's tree. Fernandez fell from the tree during the trimming, sustaining serious injury. He sought workers' compensation benefits from Lawson. Lawson's homeowner's insurer, not a party to this action, denied the claim on the ground Fernandez had not worked 52 hours and earned $100 in the 90 days preceding the injury, and thus did not fall within the statutory definition of an "employee" eligible for benefits. (§§ 3351, subd. (d), 3352, subd. (h).)
Fernandez then sued Lawson for damages, ultimately asserting as relevant here violation of various safety regulations enacted pursuant to OSHA.[3] Lawson moved *425 for and was granted summary judgment on the ground that OSHA did not apply to noncommercial tree trimming at a private residence.
The Court of Appeal reversed, holding the "trimming of Lawson's 50-foot palm tree" was not a household domestic service "as a matter of law." It expressly disagreed with Rosas v. Dishong (1998) 67 Cal.App.4th 815, 826, 79 Cal.Rptr.2d 339 (Rosas) ("Legislature intended to exclude private residence yard maintenance work, including tree trimming, from OSHA coverage under the `household domestic service' exclusion"). To determine whether tree trimming constituted "household domestic service" within the meaning of section 6303, and was thereby excluded from OSHA, the Court of Appeal reasoned, "the focus should be on the degree of skill or expertise involved and the training and competence required to safely and successfully perform the task. [¶] ... [T]he test for whether a tree trimming qualifies as a household domestic service should be whether an average member of the household has the skill and competence to undertake the activity. Under this test, the task of tree trimming (depending on the size and type of the tree and number of trees involved) may sometimes, but not always, qualify as a household domestic service. Ultimately, determining whether an average homeowner possesses the skill and competence to trim a particular tree or trees is a question of fact which should be decided on a case-by-case basis." The court further held there were triable issues of fact as to whether Fernandez was bound by any alleged misrepresentation of Lascano concerning ATS's license status.
II. Discussion
We first consider whether Lawson was required to comply with OSHA tree-trimming regulations as Fernandez's statutory employer. (See § 6304.5.)
OSHA requires that "[e]very employer shall furnish employment and a place of employment that is safe and healthful for the employees therein." (§ 6400, subd. (a).) "Employment" is defined as including "the carrying on of any trade, enterprise, project, industry, business, occupation, or work ... in which any person is engaged or permitted to work for hire, except household domestic service." (§ 6303, subd. (b), italics added.) The issue here is whether, as a matter of law, a tree trimmer hired by a homeowner for a noncommercial purpose is engaged in "household domestic service."
OSHA does not define "household domestic service." Nor does the relevant legislative history offer any guidance on the meaning of the phrase. While the current OSHA was enacted in 1973, it traces its roots to the 1913 "[Workmen's compensation, insurance and safety act." (Stats.1913, ch. 176, § 1, p. 279.) In this act, "employment" excluded "persons [who] are employed solely in ... household domestic services." (Stats.1913, ch. 176, § 51, p. 305.) This same phrase, "household domestic service," consistently appears in all subsequent versions of the "employment" definition. (Stats.1917, ch. 586, § 33, p. 861; Stats.1919, ch. 471, § 10, p. 923; Stats.1923, ch. 90, § 1, pp. 165-166; Stats.1929, ch. 249, § 1, p. 494; Stats.1937, ch. 90, § 6303, p. 306; Stats.1973, ch. 993, § 46, p.1927; Stats.1978, ch. 1248, § 1, p. 4060; Stats.2001, ch. 807, § 1; Stats.2002, ch. 368, § 1.)
Generally speaking, "household domestic service" is understood to include work both within and outside a residence. (See Catto v. Plant (1927) 106 Conn. 236, 137 A. 764, 765-767 [gardener a "domestic servant"]; id. at p. 766 ["ordinarily a domestic servant is one whose service is connected *426 with the maintenance of the house and land connected with it"].) Indeed, for purposes of regulating wages, hours, and working conditions for household occupations, the Industrial Welfare Commission defines "household occupations" in part as "all services related to the ... maintenance of a private household or its premises by an employee of a private householder" including "gardeners." (Cal.Code Regs., tit. 8, § 11150, subd. 2(1).) Tree trimming is a service commonly performed by persons hired by homeowners to maintain residential premises.
Moreover, the purpose of the 1973 overhaul of OSHA was "to allow the State of California to assume responsibility for development and enforcement of occupational safety and health standards under a state plan pursuant to Section 18 of the Federal Occupational Safety and Health Act of 1970...." (Stats.1973, ch. 993, § 107, pp.1954-1955.) The 1972 proposed California plan stated that the former Division of Industrial Safety's "authority extends to virtually every place of employment in California.... [T]he principal exceptions are Federal government agencies, maritime workers, household domestic service workers, and railroad workers except those employed in railroad shops." (Agriculture & Services Agency, Cal. Occupational Safety & Health Plan (Sept. 25, 1972) § 3(B), p. III-1.) The exceptions noted for federal agencies, maritime workers, and railroad workers are for broad categories of employees. Viewed in this context, it is likely the term "household domestic service workers" similarly encompassed a broad category of workers performing tasks in and outside of a private residence. In subsequently enacting the 1973 enabling legislation, and using the term "household domestic service" in section 6303, subdivision (b) as an exception to covered "employment," the Legislature no doubt also intended to refer to a broad category of workers.
In addition, the term "household domestic service" implies duties that are personal to the homeowner, not those which relate to a commercial or business activity on the homeowner's part. While OSHA and its predecessors have operated for 90 years primarily in the commercial setting, we need not decide in this case whether a homeowner is subject to OSHA for noncommercial projects other than tree trimming. It is sufficient to note here that there is no indication Lawson wanted the palm tree trimmed for any commercial purpose.
Finally, overwhelming public policy and practical considerations make it unlikely the Legislature intended the complex regulatory scheme that is OSHA to apply to a homeowner hiring a worker to perform tree trimming. It is doubtful the average homeowner realizes tree trimming can require a contractor's license, let alone "expect[s] that OSHA requirements would apply when they hire someone to trim a tree for their own personal benefit and not for a commercial purpose.... Moreover, homeowners are ill-equipped to understand or to comply with the specialized requirements of OSHA." (Rosas, supra, 67 Cal.App.4th at p. 826, 79 Cal.Rptr.2d 339.) Imputing OSHA liability to a homeowner under the circumstances of this case violates basic notions of fairness and notice.
Lawson asserts that of the 24 states that have federal Occupational Safety and Health Administration approved state plans (including California), "no state has published an opinion finding that a homeowner who is not conducting business out of his home is nonetheless responsible for complying with OSHA in the process of home construction, work, or maintenance."[4] Fernandez does not argue otherwise, *427 but simply states none of the cases cited by Lawson involve a homeowner being deemed an employer as the statutory consequence of hiring an unlicensed contractor. Here, of course, we are addressing the specific meaning of "employment" under OSHA, not the more general definition of employer under section 2750.5.
The Court of Appeal concluded that "the test for whether a tree trimming qualifies as a household domestic service should be whether an average member of the household has the skill and competence to undertake the activity." Fernandez argues this is a "rational and predictable test for determining whether tree trimming is or is not subject to the `household domestic service' exclusion under OSHA." Of course, nothing could be further from the truth. Rather, the Court of Appeal's approach creates massive uncertainty for a homeowner as to when OSHA would apply. Homeowners are in no position to assess whether they are an "average" homeowner in terms of their tree trimming competence.
Fernandez argues that tree trimming cannot be considered a household domestic service because there are safety regulations concerning tree trimming. Even the Court of Appeal below, which otherwise ruled in Fernandez's favor, rejected this argument. As it observed, "[t]ree trimming services are provided in a wide variety of business, commercial and public contexts. OSHA regulations for tree trimming are therefore necessary to govern instances where such services are provided in contexts other than for a private homeowner. Consequently, the fact such regulations exist does not automatically mean tree trimming must always fall outside OSHA's `household domestic service' exclusion."
Similarly, Fernandez argues that because a contractor's license is required to trim a tree 15 feet or more in height, trimming a 50-foot tree cannot be a household domestic service. A contractor's license is generally required for a variety of activities, including maintaining or servicing air conditioning, heating, or refrigeration equipment, or installing carpet. (Bus. & Prof.Code, §§ 7026.1, subd.(a), 7026.3, 7028, subd. (a).) It is not obvious we would conclude as a matter of law that such activities could never be considered household domestic services.
Having concluded Lawson is not subject to OSHA for noncommercial tree trimming, we need not reach the issue of whether Fernandez may be estopped from denying ATS's independent contractor status because of any licensing misrepresentations on the part of Lascano.
Disposition
The judgment of the Court of Appeal is reversed and the case remanded to that court for proceedings consistent with this opinion.
WE CONCUR: GEORGE, C.J. KENNARD, BAXTER, WERDEGAR, CHIN, and MORENO, JJ.
Concurring opinion by BROWN, J.
Based on our decision in State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1985) 40 Cal.3d 5, 219 Cal.Rptr. 13, 706 P.2d 1146 (State Compensation), the parties in this case assume plaintiff Miguel Fernandez is deemed the employee of homeowners Thomas and Gaile Lawson *428 (Lawson) by operation of Labor Code[1] section 2750.5[2] because Anthony's Tree Service (ATS) was unlicensed, and Fernandez was performing work for ATS which required a contractor's license. Were the question before us today, I would conclude State Compensation was wrongly decided, and section 2750.5 has no such effect.
Background
Section 2750.5 creates a rebuttable presumption affecting the burden of proof that a worker performing services for which a contractor's license is required, or who is performing such services for a person who is required to obtain such a license, is an employee rather than an independent contractor. (§ 2750.5.) Proof of independent contractor status includes satisfactory proof of the factors delineated in subdivisions (a), (b), and (c). The penultimate paragraph in section 2750.5 provides, "In addition to the factors contained in subdivisions (a), (b), and (c), any person performing any function or activity for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code shall hold a valid contractors' license as a condition of having independent contractor status."
In State Compensation, supra, 40 Cal.3d 5, 219 Cal.Rptr. 13, 706 P.2d 1146, a ranch owner hired an unlicensed contractor (id. at p. 8, 219 Cal.Rptr. 13, 706 P.2d 1146) to "construct a bedroom and a bath in the attic of his ranch house with a stairway providing access" (id. at p. 7, 219 Cal.Rptr. 13, 706 P.2d 1146). The contractor fell from a scaffold and was rendered a quadriplegic. *429 (Id. at p. 8, 219 Cal.Rptr. 13, 706 P.2d 1146.) The ranch owner, apparently not a party to the action, appeared by separate counsel in the review proceeding and argued the contractor was an employee. Similarly, in a personal injury action brought against him by the contractor, the ranch owner asserted that workers' compensation was the contractor's exclusive remedy. (Id. at p. 7, fn. 1, 219 Cal.Rptr. 13, 706 P.2d 1146.) State Compensation Insurance Fund, the ranch owner's workers' compensation insurer, argued the penultimate paragraph of section 2750.5 was only applicable when the worker was seeking independent contractor status and not when the worker was seeking employee status. (State Compensation, at p. 8, 219 Cal.Rptr. 13, 706 P.2d 1146.)
This court disagreed, in particular concluding "the penultimate paragraph establishes a fourth factor necessary to rebut the presumption" that a worker is an employee, not an independent contractor. (State Compensation, supra, 40 Cal.3d at p. 12, 219 Cal.Rptr. 13, 706 P.2d 1146.) "[B]y stating that a license is a condition of the status, the Legislature has unequivocally stated that the person lacking the requisite license may not be an independent contractor." (Id. at p. 15, 219 Cal. Rptr. 13, 706 P.2d 1146.) Thus, while the contractor arguably otherwise satisfied the test for being an independent contractor, because he was unlicensed he was held to be an employee entitled to workers' compensation benefits.[3](State Compensation, at pp. 7-8, 12-16, 219 Cal.Rptr. 13, 706 P.2d 1146.)
Justice Mosk filed a concurring opinion, expressing his "concern about the unfair burden effectively imposed on a class of hirers" by Labor Code section 2750.5. (State Compensation, supra, 40 Cal.3d at p. 16, 219 Cal.Rptr. 13, 706 P.2d 1146 (cone. opn. of Mosk, J.).) He noted that "Insurance Code section 11590 requires comprehensive personal liability insurance policies to contain a provision for compensation insurance for `employees,' as that term is defined in Labor Code section 3351, subdivision (d); [section 3352, subdivision (h)] however, expressly excludes, among others, any person employed for less than 52 hours during the 90 calendar days immediately preceding the date of the injury [citation]. Thus, policies drawn to incorporate [Insurance Code] section 11590 effectively fail to provide compensation insurance in the apparently common situation in which workers are engaged in fairly routine and minor repairs rather than major capital improvements." (State Compensation, at pp. 17-18, 219 Cal.Rptr. 13, 706 P.2d 1146.) Justice Lucas dissented, adopting the Court of Appeal opinion below, and concluding the language in Labor *430 Code section 2750.5's penultimate paragraph simply meant that the contractor (as opposed to the ranch owner) could not assert independent contractor status unless he had a contractor's license. (State Compensation, at pp. 18-23, 219 Cal.Rptr. 13, 706 P.2d 1146 (dis. opn. of Lucas, J.).)
Discussion
In State Compensation, supra, 40 Cal.3d 5, 219 Cal.Rptr. 13, 706 P.2d 1146, we did not consider the broader implications of concluding the homeowner was an employer under section 2750.5, perhaps because we were only focusing on workers' compensation coverage, and the homeowner had that coverage available. Here, while Lawson paid premiums for workers' compensation coverage, Fernandez fell outside the coverage provisions of workers' compensation by virtue of the number of hours worked. Therefore, unlike the homeowner in State Compensation, whose "employee" came within the coverage provisions of workers' compensation, and workers' compensation was his exclusive remedy, Lawson is subject to civil liability as an employer.
Of course, the ramifications of placing employer status on unsuspecting homeowners hiring workers to do a discrete task the homeowner might never suspect would require a contractor's license are dramatic. Presumably, in the absence of any exclusion under the applicable law, homeowners become potentially liable not only for OSHA compliance, but COBRA health coverage benefits, sexual harassment claims, collective bargaining agreement enforcement, and a myriad of other obligations they are ill equipped to anticipate or comply with. It seems unlikely the Legislature intended this result when it enacted section 2750.5.
Rather, it appears Justice Lucas and the Court of Appeal in State Compensation were correct that the language in section 2750.5's penultimate paragraph simply means that the contractor, as opposed to the homeowner, is precluded from asserting independent contractor status if he is not licensed.[4]
*431 As can be seen, section 2750.5, subdivision (c) already includes "holding a license pursuant to the Business and Professions Code" as one of the many cumulative factors to consider in determining whether the worker's independent contractor status is bona fide. It seems unlikely the Legislature nevertheless singled out this factor as a kind of "trump card," the absence of which renders a worker an employee despite any other evidence of independent contractor status. Moreover, if the Legislature had intended the penultimate paragraph to be part of the criteria for rebutting the presumption a worker was an employee, it presumably would have made having a license factor (d), along with the other three factors, not listed it in a different paragraph. Further, it would have deleted the reference in subdivision (c) to licensing.
Along these lines, the legislative history of section 2750.5 states, "Three basic factors would have to be proved to show independent contractor status under this bill...." (Sen. Industrial Relations Com., Analysis of Assem. Bill No. 3429 (1977-1978 Reg. Sess.) Aug. 14, 1978, p. 2, italics added.) The analysis then summarizes the factors currently in section 2750.5, subdivisions (a) through (c). (Analysis of Assem. Bill No. 3429, p. 2.) "Finally, this bill would require any contractor performing any function or activity for which a license is required from the Contractors' State Licensing Board to hold the required license as a condition of having independent contractor status." (Ibid.) In addition, the legislative history shows the bill was originally amended to read, "In addition to subdivisions (a), (b) and (c), any person claiming an independent contractor status shall have, in his possession, a valid contractor's license issued pursuant to the provisions contained in Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code." (Assem. Bill No. 3429 (1977-1978 Reg. Sess.) as amended Aug. 7,1978.)
Indeed, the legislative history of section 2750.5 indicates the Legislature was concerned contractors were improperly characterizing those they hired as independent contractors instead of employees and thereby denying them union scale pay, and workers' compensation and unemployment insurance benefits. (Enrolled Bill Rep. on Assem. Bill No. 3429 (1977-1978 Reg. Sess.) Sept. 12, 1978, p. 1 ["The need for this legislation stems from work agreements in the construction industry that tend to undermine collective bargaining agreements by using the guise of independent contractor to cover work that is normally done by employees, thus avoiding payment of union scale, workers compensation insurance and fringe benefits"]; Sen. Floor Statement, Assem. Bill No. 3429 (1977-1978 Reg. Sess.) p. 1 ["This legislation is needed because of the huge increase in the number of contractors who are treating their employees as independent subcontractors in order to illegally escape payment of employee Unemployment] Insurance] taxes, benefits, workers' compensation premiums, and other costs associated with employees. This situation is totally unfair and is competitively killing the honest contractor who plays by the rules"].) There is no indication in the legislative history the Legislature intended section 2750.5 to apply to a homeowner who hires an unlicensed contractor. (Sen. Floor Statement, Assem. Bill No. 3429 (1977-1978 Reg. Sess.) p. 2 ["This bill only covers construction workers and doesn't cover other employers or employees"].) Indeed, a contractor or construction worker would reasonably be expected to be familiar with licensing and safety law requirements, whereas the average homeowner would not.
*432 Moreover, the State Compensation analysis leads to several anomalous results. As alluded to by Justice Lucas in his State Compensation dissent, in concluding the homeowner is an employer, we are providing either workers' compensation or tort recovery to a worker who committed a misdemeanor in performing unlicensed contracting work, but not providing such coverage or recovery to a contractor who actually complied with the law. (State Compensation, supra, 40 Cal.3d at p. 21, 219 Cal.Rptr. 13, 706 P.2d 1146.) This is "inconsistent with the purpose of the licensing laws." (Ibid.) Similarly, we create the ironic situation that while the homeowner, Lawson, did not have to pay Lascano, doing business as Anthony's Tree Service, because he was unlicensed (Bus. & Prof.Code, § 7031), Lawson is deemed his employer under section 2750.5, with concomitant workers' compensation or tort liability, because Lascano was unlicensed. And, most important, despite the fact that the legislative history of section 2750.5 never hints the statute would apply to a homeowner, we expose unsuspecting homeowners to a panoply of obligations the homeowner is likely unaware of and with which they have little ability to comply. This cannot be a proper interpretation of section 2750.5, and the Legislature should act promptly, by deleting or amending the penultimate paragraph of section 2750.5, to restore an apparently straightforward intent which has been undermined by the section's garbled syntax.
I CONCUR: BAXTER, J.
NOTES
[1] All statutory references are to the Labor Code unless otherwise indicated.
[2] Section 2750.5 provides in part: "There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor. Proof of independent contractor status includes satisfactory proof of [certain] factors: [¶][¶][¶] In addition to the factors contained in subdivisions (a), (b), and (c), any person performing any function or activity for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code shall hold a valid contractors' license as a condition of having independent contractor status."
[3] The tree work, maintenance, or removal regulations provide in part that "An accident prevention program shall be inaugurated and maintained"; "Each work location where tree trimming ... is to be done, shall be under the direction of a qualified tree worker"; "Employees shall be trained and instructed in the hazards involved in their job assignments ... [and][s]uch training shall be documented by the employer"; "A job briefing shall be conducted by a qualified tree worker before each work assignment is begun"; "Prior to use, all equipment and safety devices shall be inspected"; "The employer shall establish rescue procedures and provide training in first-aid, cardiopulmonary resuscitation (CPR) and aerial rescue. First-aid and CPR training shall be performed by a certified instructor"; "Prior to climbing the tree, the tree shall be visually inspected to determine the safest method of entry into the tree"; "The climbing line must be crotched as soon as practicable after the employee is aloft, and a taut line-hitch tied and checked"; "The climbing rope shall be passed around the main leader or a major upright branch of the tree as high as necessary using branches with a wide crotch to prevent any binding of the safety rope. The crotch selected for tying-in shall be over the work area as nearly as possible, but located in such a way that a slip or fall would not permit the employee to come in contact with any electric conductor, equipment or other hazard. The rope shall be passed around the main leader or an upright branch, using a limb as a stop"; and "When working aloft, employees shall be required to wear tree workers' saddles and tie-in with an approved safety strap or rope." (Cal.Code Regs., tit. 8, §§ 3421, subds. (a)-(e), (j), 3427, subd. (a)(1)-(4); see generally id., §§ 3420-3428.)
[4] "The Connecticut, New Jersey and New York plans cover public sector (state & local government) employment only" and hence are unlikely to involve homeowners. (U.S. Dept. Labor, Occupational Safety & Health Admin. [as of July 7, 2003].)
[1] All statutory references are to the Labor Code unless otherwise indicated.
[2] Section 2750.5 provides: "There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor. Proof of independent contractor status includes satisfactory proof of these factors:
"(a) That the individual has the right to control and discretion as to the manner of performance of the contract for services in that the result of the work and not the means by which it is accomplished is the primary factor bargained for.
"(b) That the individual is customarily engaged in an independently established business.
"(c) That the individual's independent contractor status is bona fide and not a subterfuge to avoid employee status. A bona fide independent contractor status is further evidenced by the presence of cumulative factors such as substantial investment other than personal services in the business, holding out to be in business for oneself, bargaining for a contract to complete a specific project for compensation by project rather than by time, control over the time and place the work is performed, supplying the tools or instrumentalities used in the work other than tools and instrumentalities normally and customarily provided by employees, hiring employees, performing work that is not ordinarily in the course of the principal's work, performing work that requires a particular skill, holding a license pursuant to the Business and Professions Code, the intent by the parties that the work relationship is of an independent contractor status, or that the relationship is not severable or terminable at will by the principal but gives rise to an action for breach of contract.
"In addition to the factors contained in subdivisions (a), (b), and (c), any person performing any function or activity for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code shall hold a valid contractors' license as a condition of having independent contractor status.
"For purposes of workers' compensation law, this presumption is a supplement to the existing statutory definitions of employee and independent contractor, and is not intended to lessen the coverage of employees under Division 4 and Division 5."
[3] (See, e.g., Hunt Bldg. Corp. v. Bernick (2000) 79 Cal.App.4th 213, 216, 220, 93 Cal. Rptr.2d 883 [general contractor liable for unlicensed subcontractors' employees' unpaid unemployment insurance and other contributions and withholding taxes by operation of § 2750.5]; Rosas v. Dishong (1998) 67 Cal. App.4th 815, 817, 821-823, 826, 79 Cal. Rptr.2d 339 [tree trimmer who worked too few hours to qualify for workers' compensation benefits still an employee by operation of § 2750.5 for purposes of tort liability; homeowner not liable under California's Occupational Safety and Health Act (OSHA) (§ 6300 et seq.) due to "household domestic service" exception]; Foss v. Anthony Industries (1983) 139 Cal.App.3d 794, 797-800, 189 Cal.Rptr. 31 [§ 2750.5 applies in tort actions by third parties against hirer of unlicensed contractor regarding torts by unlicensed contractor's employee, but licensing requirement not retroactive]; but see Fillmore v. Irvine (1983) 146 Cal.App.3d 649, 657, 194 Cal.Rptr. 319 [Lab. Code, § 2750.5 does not apply to determinations of whether a person is an employee or independent contractor under Bus. & Prof. Code, § 7031, which in general bars actions to collect compensation by unlicensed contractors].)
[4] Under this approach, Eliseo Lascano, doing business as ATS, is initially presumed to be Lawson's employee. (§ 2750.5 ["There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required ... is an employee rather than an independent contractor"].) However, that presumption is rebutted by overwhelming evidence that Lascano satisfied the criteria for being an independent contractor delineated in subdivisions (a), (b), and (c). For example, Lascano had "the right to control and discretion as to the manner of performance of the contract for services," was "customarily engaged in an independently established business," had a "substantial investment other than personal services in the business," held himself "out to be in business for [him]self," "bargain[ed] for a contract to complete a specific project for compensation by project rather than by time," exercised "control over the time and place the work [was] performed," "supplied] the tools or instrumentalities used in the work;" "hir[ed] employees," "perform[ed] work that [was] not ordinarily in the course of the principal's work," and "perform[ed] work that require[d] a particular skill." (§ 2750.5, subds.(a), (b), (c).)
Furthermore, under this approach, Fernandez is presumed an employee of Lascano, and that presumption is not rebutted by the criteria in paragraphs (a), (b), or (c). (§ 2750.5 ["There is a rebuttable presumption affecting the burden of proof that a worker ... who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor"].) Neither Lascano nor Fernandez is rendered an employee of Lawson by virtue of the penultimate paragraph of section 2750.5. Rather, this paragraph simply means that the contractor is precluded from asserting independent contractor status if he is not licensed.
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738 N.W.2d 588 (2007)
2007 WI App 186
Elizabeth L. MORRISON, Plaintiff-Respondent,
v.
Thomas V. RANKIN, M.D., Defendant-Appellant,
The Medical Protective Company and Wisconsin Patients Compensation *589 Fund, Defendants-Co-Appellants,[]
Sacred Heart Hospital, ABC Insurance Company and XYZ Insurance Company, Defendants,
Physicians Plus Insurance Corp., CIGNA Healthcare and Medicare Parts A & B, Subrogated Defendants.
No. 2006AP980.
Court of Appeals of Wisconsin.
Submitted on Briefs May 7, 2007.
Opinion Filed July 26, 2007.
*591 On behalf of the defendant-appellant, the cause was submitted on the briefs of Scott L. Howie of Pretzel & Stouffer Chartered, Chicago, IL, and William R. Wick and Eric G. Nycz of Nash, Spindler, Grimstad & McCracken, LLP, Manitowoc.
On behalf of the defendant-co-appellant The Medical Protective Company, the cause was submitted on the briefs of Thomas R. Schrimpf of Hinshaw & Culbertson LLP, Milwaukee.
On behalf of the defendant-co-appellant Wisconsin Patients Compensation Fund, the cause was submitted on the briefs of Mark E. Larson and Bradley S. Foley of Gutglass, Erickson, Bonville & Larson, S.C., Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of C.M. Bye and Tracy N. Tool of Bye, Goff, Rohde & Skow, Ltd., River Falls.
Before VERGERONT, HIGGINBOTHAM and BRIDGE, JJ.
¶ 1 BRIDGE, J.
Dr. Thomas Rankin, the Medical Protective Company ("Medical Protective"), and the Wisconsin Patients Compensation Fund ("the Fund"), appeal from an order directing a verdict against Rankin on the issue of informed consent in a medical malpractice action. The directed verdict was a sanction imposed by the court for spoliation of evidence. They argue that the sanction of a directed verdict against Rankin was an erroneous exercise of discretion by the circuit court. Medical Protective and the Fund also appeal an order requiring both parties to provide insurance coverage to Rankin. They argue that coverage under Rankin's malpractice insurance does not extend to spoliation of evidence.
¶ 2 We conclude that the circuit court properly exercised its discretion in directing a verdict after determining that Rankin knew or should have known that the documents he destroyed would be evidence in the malpractice action, and that Rankin's actions constituted egregious conduct. We further conclude that, because the underlying claim in this case arose out of Rankin's professional services, Medical Protective and the Fund are responsible for coverage under Rankin's malpractice insurance policy. We therefore affirm the circuit court's order directing a verdict against Rankin and affirm the circuit court's order requiring Medical Protective and the Fund to provide insurance coverage to Rankin.
BACKGROUND
¶ 3 On June 11, 1999, Rankin performed spine fusion surgery on Elizabeth Morrison using "BAK cages" which were relatively new to surgery at the time. Morrison *592 claimed that as a result of the surgery, she sustained an injury to the nerve roots in her low back, causing her to suffer disability in her legs. She commenced a medical malpractice action against Rankin, his insurer Medical Protective and the Fund. Morrison's complaint alleged a cause of action based on both informed consent and medical malpractice. However, during her deposition, Morrison's counsel stipulated that informed consent would not be an issue at trial.
¶ 4 Shortly before trial, Rankin's former physician's assistant provided deposition testimony bearing on the calculation of the complication rate Rankin had experienced in BAK cage surgeries. At a pretrial hearing, Morrison sought to admit evidence regarding Rankin's complication rate, which Morrison asserted Rankin failed to disclose to her prior to her surgery. The circuit court denied the motion, ruling that evidence of other instances of alleged malpractice was precluded under WIS. STAT. § 904.03 (2003-04)[1] as unfairly prejudicial. The court stated that "there will be no issue of informed consent" at trial.
¶ 5 A jury trial commenced on June 7, 2004. The initial witness was Rankin, called adversely by Morrison. Morrison's attorney asked Rankin if he had experienced complications in prior similar surgeries using BAK cages. At a sidebar following defense objections to that question, the circuit court stated that it had already ruled that the evidence on complication rates was inadmissible and sustained the objection. The court also denied a defense motion for a mistrial. However, the court permitted Morrison to make an offer of proof on the issue. Rankin renewed his motion for a mistrial.
¶ 6 At that point the court decided to give Morrison an option: she could either go forward with the trial with no issue of informed consent, or she could set aside the stipulation regarding informed consent and continue the trial to give both parties an opportunity to develop that issue. If Morrison opted for a continuance, the court would charge her with the costs of Rankin's trial preparation. Morrison opted for a continuance. The court made the following ruling: "[M]y ruling at this point is to continue this matter to allowto order that the stipulation and understanding regarding no informed consent be set aside so that both parties can have an opportunity to develop that issue, both for it and against it."
¶ 7 Three days later on June 10, 2004, Morrison served a motion for continuance of trial "to permit the parties to do further discovery on the issue of Dr. Rankin's BAK cage complication rate and his duty to inform his last BAK cage patient, Elizabeth Morrison, of his experience with BAK cage surgeries and his prior BAK cage surgical results." On the same date, Morrison served Rankin with interrogatories regarding Rankin's BAK cage surgeries and the complications and injuries sustained by his previous patients.
¶ 8 On July 28, 2004, Rankin shredded several thousand pounds of patient records while readying for sale the properties where the records were stored. The destroyed records included all of his patient records.
¶ 9 Rankin later testified that around April of 2004, he called his attorney to inquire generally about getting rid of his medical records. His attorney informed him that under Wisconsin law relating to *593 the applicable statutes of limitations and repose for medical malpractice, he was required to keep medical records for at least five years.[2] Rankin did not consult an attorney on the subject again prior to shredding the documents.
¶ 10 On October 29, 2004, Rankin responded to Morrison's discovery request by stating that he had not retained any written documents regarding the BAK cage surgeries he had performed. He stated further that without the medical records, he was unable to provide a detailed description of either the procedure or any alleged complications or injuries arising from the procedure.
¶ 11 Morrison moved for sanctions for spoliation of evidence. The circuit court found that Rankin's destruction of records was intentional and that Rankin knew or should have known that some of the documents could have been relevant to the very issue upon which the June trial was adjourned. The court also found that the evidence did not support a finding that the destruction was an attempt to defraud Morrison of her cause of action, although there was more than sufficient evidence to support a finding that the destruction prejudiced Morrison. It noted that there was insufficient evidence that any attorneys willingly or knowingly allowed the destruction.
¶ 12 The court ruled that the jury would be instructed concerning Rankin's destruction of records and awarded Morrison fees and costs. The court ruled further that Medical Protective and the Fund were not relieved from their responsibility to insure and represent Rankin.
¶ 13 Medical Protective and the Fund moved for reconsideration and raised a policy coverage defense.[3] After additional briefing, the court altered its original ruling and held that Rankin should have known that the documents he destroyed may have had relevance to a retrial on the issue of informed consent and that the destruction raised the strong inference that the records would have revealed evidence that was unfavorable to Rankin and favorable to Morrison. The court determined that it would not be fair to require Morrison to undertake further discovery in an attempt to identify additional records beyond the destroyed patient records, which the court concluded could not possibly be compared to or contrasted with the destroyed records. The court then directed a verdict in favor of Morrison on the issue of informed consent and vacated its award of costs and fees. The court also reiterated its prior ruling regarding the legal nexus between Rankin, Medical Protective and the Fund and the duty of the insurers to represent and insure Rankin.
¶ 14 A second trial was held. Prior to trial, Rankin admitted that the surgery caused Morrison permanent nerve injury. Only the issue of damages remained, and on that issue the jury returned a verdict in the amount of $2,232,577.04. Rankin, Medical Protective and the Fund appeal; Medical Protective and the Fund also appeal the coverage issue.
SANCTION FOR DESTRUCTION OF EVIDENCE
¶ 15 A trial court's decision whether to impose sanctions for the destruction or *594 spoliation of evidence, and what sanction to impose, is committed to the trial court's discretion. City of Stoughton v. Thomasson Lumber Co., 2004 WI App 6, ¶38, 269 Wis.2d 339, 675 N.W.2d 487 (Ct.App.2003) (citations omitted). We affirm discretionary rulings if the trial court has examined the relevant facts, applied a proper standard of law, and, utilizing a demonstratively rational process, reached a conclusion that a reasonable judge could reach. Id.
¶ 16 The primary purpose behind the doctrine of spoliation is two-fold: (1) to uphold the judicial system's truth-seeking function; and (2) to deter parties from destroying evidence. Insurance Co. of N. Am. v. Cease Elec. Inc., 2004 WI App 15, ¶16, 269 Wis.2d 286, 674 N.W.2d 886 (Ct. App.2003), aff'd, 2004 WI 139, 276 Wis.2d 361, 688 N.W.2d 462. When a party deliberately destroys documents, the court may find spoliation by applying a two-part analysis. First, the court should "consider . . . whether the party responsible for the destruction of evidence knew, or should have known, at the time it destroyed the evidence that litigation was a distinct possibility." Id., ¶ 15, 674 N.W.2d 886. Second, the court should consider "whether the offending party destroyed documents which it knew, or should have known, would constitute evidence relevant to the pending or potential litigation." Id.
¶ 17 The first part of the test whether Rankin knew or should have known that litigation was a distinct possibilitywas obviously met because Rankin was the defendant in a medical malpractice action at the time he destroyed the records. Rankin does not argue otherwise. With respect to the second part of the test, Rankin argues that the destruction of the records was an innocent act. He asserts that the records were destroyed to help ready his property for sale.[4] However, the fact that Rankin may have had a personal reason for destroying the documents does not relieve him of the obligation to preserve evidence for trial. See, e.g., Sentry Ins. v. Royal Ins. Co. of Am., 196 Wis.2d 907, 918-19, 539 N.W.2d 911 (Ct.App.1995).
¶ 18 Rankin contends that he had ample reason to believe that the documents were not relevant to the Morrison litigation because informed consent was not at issue in the case. He bases this assertion on the stipulation by counsel at Morrison's deposition and the circuit court's earlier ruling that informed consent would not be an issue at trial. This argument ignores the court's later ruling that specifically set aside the stipulation regarding informed consent and adjourned the trial to give the parties the opportunity to develop the issue. Rankin, along with the Medical Protective attorney who was representing him and the Fund's attorney, were in the courtroom at the time of this ruling.
¶ 19 The circuit court noted that the trial was specifically adjourned for the purpose of developing the informed consent issue, and that shortly thereafter, Rankin intentionally destroyed records that Rankin knew or should have known *595 were relevant to this very issue. The court made the predicate findings under the test for spoliation. We conclude that the circuit court properly exercised its discretion in concluding that Rankin's actions constituted spoliation and were therefore sanctionable.
¶ 20 We turn next to the particular sanction imposed. WISCONSIN STAT. §§ 804.12(2)(a) and 805.03 permit circuit courts to impose "just" sanctions, including dismissal, for failure to comply with court orders.[5] Because dismissal is such a harsh sanction, however, the supreme court has held that dismissal is proper only when the plaintiff has acted egregiously or in bad faith.[6]See Industrial Roofing Servs., Inc. v. Marquardt, 2007 WI 19, ¶ 43, 299 Wis.2d 81, 726 N.W.2d 898. Egregious conduct means a conscious attempt to affect the outcome of litigation or a flagrant, knowing disregard of the judicial process. Garfoot v. Fireman's Fund Ins. Co., 228 Wis.2d 707, 719, 599 N.W.2d 411 (Ct.App. 1999). Upon such a showing, the court may impose sanctions regardless of whether the destruction "impaired the opposing party's ability to present a claim or defense." Id. at 731, 599 N.W.2d 411.
¶ 21 In the present case the circuit court held as follows:
The initial trial in this matter was aborted in June of 2004 for the sole reason of allowing the plaintiff to develop the cause of action related to informed consent. Knowing that, shortly thereafter, Dr. Rankin destroyed his medical records. Not only should Dr. Rankin have recognized his duty to maintain patient records, but he should have known that some or all of those records may have had relevance to a retrial on the issue of informed consent and may have been favorable to the plaintiff in developing that cause of action. In fact, I firmly believe the doctor's destruction of his records raises a strong inference that the records destroyed would have revealed evidence that was unfavorable to Dr. Rankin and favorable to the plaintiff.
At this point, based solely upon Dr. Rankin's actions, it would not be fair to require the plaintiff to defend against defendants' challenges, engage in further, possibly lengthy discovery, including discovery related to the possibility of availability of some other records (which could not possibly be compared to or contrasted with the destroyed records), name additional experts, nor engage in any other activities which would only generate additional time and expense. In short, the innocent plaintiff should not pay for the sins of Dr. Rankin.
While the circuit court did not make an explicit finding of bad faith or egregious conduct, that is the clear import of its comments and the record provides a reasonable basis for that implicit finding. See Paytes v. Kost, 167 Wis.2d 387, 394, 482 N.W.2d 130 (Ct.App.1992) (the law does not require a circuit court to make an *596 explicit finding of bad faith or egregious conduct before imposing a sanction).
¶ 22 Rankin argues that in its initial ruling on sanctions, the court faulted him with not recognizing that the destroyed records might affect the trial, but that the court "did not detect any ulterior motive" in Rankin's actions. Thus, Rankin argues that there was no egregious conduct on his part.
¶ 23 Rankin overlooks the fact that the circuit court later reconsidered the ruling upon which he relies. The circuit court initially concluded that Rankin's conduct was not intended to defraud Morrison of her cause of action, but rather prejudiced her claim. In its second ruling, however, it is apparent that the court viewed things differently. The court concluded that, not only did Rankin act intentionally, but that he likely did so knowing that the destruction would eliminate evidence that would have been favorable to Morrison and unfavorable to him. It was not necessary for the court to expressly repudiate its earlier determination regarding the level of Rankin's culpability; it implicitly did so. The court's second ruling goes to Rankin's attempt to affect the outcome of the litigation, which constitutes egregious conduct. See Garfoot, 228 Wis.2d at 724, 599 N.W.2d 411.
¶ 24 The circuit court noted the difficulty Morrison would likely experience in trying to identify and locate alternative records that might bear on Rankin's complication rate, given the fact that the destroyed records were the only complete set of medical records regarding Rankin's other BAK surgery patients. As Morrison argued, the records Rankin destroyed were essential to Morrison's informed consent claim. Morrison's attorney informed the court that Morrison had obtained records regarding six of Rankin's BAK cage patients from the hospital where the surgeries took place, but that the hospital records indicated that there were nineteen additional such patients. Rankin claimed that Morrison could recreate the data by using the hospital records, but Morrison responded that the complications could have occurred after patients left the hospital and were under follow-up care with Rankin, which is what happened in her case. Only Rankin's full patient records could tell the entire story. Upon a showing of egregious conduct, a court may impose sanctions regardless of whether the destruction "impaired the opposing party's ability to present a claim or defense." Id. at 731, 599 N.W.2d 411. Here, the court reasonably found that Rankin's destruction of medical records did in fact impair Morrison's ability to present her claim.
¶ 25 Rankin argues that under Hudson Diesel, Inc. v. Kenall, 194 Wis.2d 531, 545, 535 N.W.2d 65 (Ct.App.1995), dismissal for failure to respond to discovery and follow court orders requires that the offending action must be persistent and not limited to a single event. We disagree. In Hudson Diesel, we reviewed a circuit court's decision to impose dismissal as a sanction for a party's inadequate response to a discovery request. We concluded that the discovery response was inadequate, but did not rise to the level of egregious conduct because it was not extreme or persistent. Id. at 544-45, 535 N.W.2d 65. Accordingly, we ruled that the circuit court erred by dismissing the complaint. We did not hold that in order to be egregious, conduct must always be persistent. Here Rankin destroyed all of his medical records in a single act. The magnitude of the loss under the circumstances described above is sufficient to constitute egregious conduct.
¶ 26 Rankin also argues that under Hudson Diesel, the circuit court was required to determine whether a less severe *597 sanction was available to remedy the non-complying party's discovery violation before dismissal could be ordered. We did impose such a requirement in Hudson Diesel, but limited the holding to cases in which the conduct that is the basis for dismissal is not intentional or in bad faith. See id. In the present case, the circuit court explicitly concluded that Rankin's actions were intentional and implicitly concluded that his conduct was egregious. Accordingly, Hudson Diesel does not apply.
¶ 27 We conclude that the circuit court properly considered whether Rankin's conduct rose to the level of culpability justifying a directed verdict. The court examined the relevant facts and applied the correct standard of law. Accordingly, we conclude that the court properly exercised its discretion in directing a verdict as a sanction for Rankin's conduct.
MEDICAL PROTECTIVE'S DUTY TO INSURE
¶ 28 Medical Protective argues that the destruction of records does not constitute "professional services" under the policy. It also argues that the damages awarded to Morrison were imposed as a result of a sanction and therefore are not "compensatory damages." Therefore, according to Medical Protective, Rankin is not covered under the terms of its medical malpractice policy. We disagree.
¶ 29 Rankin's Medical Protective policy provides in pertinent part that "the Company hereby agrees to defend and pay damages, in the name and on behalf of the Insured or his estate, . . . in any claim for damages . . . based on professional services rendered or which should have been rendered . . ., by the insured . . . in the practice of the insured's profession. . . ." The policy provides further that it does not cover "any punitive damages or damages over and above actual compensatory damages, which may be assessed against the Insured."
¶ 30 The interpretation of a written insurance policy presents a question of law which we decide de novo.[7]Langone v. American Family Mut. Ins. Co., 2007 WI App 121, ¶ 8, ___ Wis.2d ___, 731 N.W.2d 334. The language of an insurance policy is interpreted in the same way as other contracts. Id. Courts consider the language's plain and ordinary meaning as understood by a reasonable insured. Id.
¶ 31 Morrison claims that Rankin performed surgery on her without obtaining her informed consent and that his negligence caused her injury and related damages. Morrison's claim was directly related to professional services rendered or not rendered by Rankin, not spoliation, and the jury's award was plainly compensatory for damages she suffered as a result of Rankin's professional negligence. We are not persuaded by Medical Protective's arguments to the contrary.
¶ 32 The cases upon which Medical Protective relies are from other jurisdictions in which courts have concluded that a *598 spoliation tort claim is not covered under a policy limited to "bodily injury." See Johnson v. Evan Hall Sugar Coop., Inc., 836 So.2d 484, 484-88 (La.Ct.App.2002); Fremont Cas. Ins. Co. v. Ace-Chicago Great Dane Corp., 317 Ill.App.3d 67, 250 Ill.Dec. 624, 739 N.E.2d 85, 91-92 (2000); Humana Worker's Comp. Serv. v. Home Emergency Servs., Inc., 842 So.2d 778, 781 (Fla.2003).[8] As Morrison points out, she did not sue Rankin for tortious spoliation and Medical Protective's policy was not limited to "bodily injury." These cases do not support Medical Protective's position.
¶ 33 Medical Protective argues further that there is no authority under which spoliation sanctions can run to an insurer. As noted above, Medical Protective's obligation to insure does not arise from spoliation sanctions; it arises from the terms of its medical malpractice policy insuring Rankin against claims for negligent medical acts undertaken in the course of rendering professional medical care. Moreover, Medical Protective cites no Wisconsin authority in support of its assertion that spoliation must be segregated in some fashion from an underlying malpractice claim.[9] For the reasons discussed above, we conclude that Medical Protective is obligated to insure Rankin under the terms of its malpractice policy.
THE FUND'S OBLIGATION TO INSURE
¶ 34 The Fund's arguments regarding coverage mirror those of Medical Protectivenamely, that it does not cover liability imposed as a sanction and instead covers medical malpractice claims. For the same reasons that we conclude that Medical Protective must insure Rankin, we conclude that the Fund must provide excess coverage.
¶ 35 Under Wisconsin law, health care providers must maintain one million dollars in health care liability coverage. See WIS. STAT. § 655.23(4)(b)2. Excess coverage over that amount is provided by the Fund pursuant to WIS. STAT. § 655.27(1), which provides that "[t]here is created an injured patients and families compensation fund for the purpose of paying that portion of a medical malpractice claim which is in excess of the limits expressed in § 655.23(4). . . ."
¶ 36 Under this statutory provision, the Fund is obligated to provide excess coverage against medical malpractice claims. Here, Morrison claimed that Rankin committed medical malpractice by failing to secure her informed consent to BAK cage surgery. The Fund's obligation to provide coverage to Rankin was triggered by the jury verdict, which exceeded Medical Protective's policy limits. The jury awarded damages based on Morrison's lack of informed consent claim, not for spoliation. Therefore, under WIS. STAT. § 655.27(1), the Fund is obligated to provide coverage to Rankin for those amounts in excess of Medical Protective's policy limits.
¶ 37 The Fund argues that the circuit court's decision deprives it of its right to a jury trial. We disagree. It provides no authority for the proposition that it has such a constitutional right under the circumstances presented in this *599 case. Even if it does, however, the right to a jury trial is not absolute. The right to a jury trial does not prevent a court from entering dismissal or default judgment to sanction litigants. See Schultz v. Sykes, 2001 WI App 255, ¶ 22, 248 Wis.2d 746, 638 N.W.2d 604. As the circuit court concluded, the Fund's interests are directly aligned with the interests of Rankin and Medical Protective, and its stake in the case is directly tied to Rankin's liability. Once the circuit court determined Rankin's liability as a matter of law (regardless of whether that determination resulted from a sanction or a legal conclusion based on the evidence), the only remaining factual issue in dispute was the amount of damages. This issue was resolved by a jury.
¶ 38 For all of the above reasons, we conclude that the Fund was obligated to provide excess insurance pursuant to its obligation under WIS. STAT. § 655.27(1).
MORRISON'S MOTION FOR COSTS AND FEES
¶ 39 Morrison asks that we impose costs and attorney fees against Medical Protective under WIS. STAT. Rule 809.25(3)(c) because, she asserts, this appeal is frivolous. We may impose attorney fees under RULE 809.25(3)(c) only if the entire appeal is frivolous. State ex rel. Robinson v. Town of Bristol, 2003 WI App 97, ¶ 54, 264 Wis.2d 318, 667 N.W.2d 14. Although we have decided against Medical Protective on the issues it raises, we cannot say that its arguments are wholly frivolous. We therefore deny the motion for costs and attorney fees.
Orders affirmed.
NOTES
[] Petition for Review Filed
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Rankin ceased practicing medicine on July 30, 1999, approximately six weeks after Morrison's surgery. He testified that he believed that the last date on which he performed surgery was about July 20, 1999, and therefore five years had expired by the time he destroyed the records on July 28, 2004.
[3] Rankin and Medical Protective were initially represented jointly in the matter by an attorney appointed by Medical Protective. Medical Protective raised the coverage defense by separate counsel.
[4] Rankin also asserts that the records he destroyed did not concern patients to whom he could be legally liable because the five-year statutes of limitation and repose for medical malpractice had expired. See WIS. STAT. § 893.55(1m)(a) and (b). Morrison responds that Rankin's legal obligation with respect to the destroyed records went beyond the provisions set forth in the statutes of limitation and repose. She points out that WIS. STAT. § 146.819(3)(a) and (b) require notice to former patients before destroying patient records, and Rankin does not claim that he provided such notice as required by the statute. However, Rankin's obligation to provide the required notice presents a different question than Rankin's obligation to preserve evidence for trial, which is at issue in the present case. Accordingly, we do not address this issue.
[5] Under WIS. STAT. § 804.12(2)(a), "[i]f a party . . . fails to obey an order to provide or permit discovery, . . . the court . . . may make such orders in regard to the failure as are just, [including] . . . dismissing the action."
Section 805.03 provides, "[f]or failure of any claimant to prosecute or for failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of [the] court, the court . . . may make such orders in regard to the failure as are just, including . . . orders authorized under § 804.12(2)(a)."
[6] The parties base their arguments on cases involving dismissal and we see no meaningful basis upon which to distinguish between dismissal of claims and directing a verdict on causation for purpose of determining whether the sanction was "just" under the circumstances.
[7] Morrison argues that Medical Protective raised the coverage issue for the first time in its motion for reconsideration of the court's decision to sanction Rankin and that the circuit court had discretion to reject a new argument raised at that time pursuant to Koepsell's Olde Popcorn Wagons, Inc. v. Koepsell's Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis.2d 397, 685 N.W.2d 853. The circuit court used virtually the same language regarding coverage in both its initial ruling on sanctions and in its subsequent ruling on reconsideration. In opposing reconsideration, Morrison advanced various legal arguments to the circuit court as to why Medical Protective and the Fund were legally required to insure Rankin, but did not argue at that time that the coverage issue was untimely raised. We assume, therefore, that the circuit court did not reject the coverage argument because it was untimely raised, which would be a discretionary ruling, but on its merits.
[8] In addition, Medical Protective refers to Farr v. Evenflo Co., Inc., 287 Wis.2d 827, 705 N.W.2d 905, unpublished slip op. (WI App Aug. 4, 2005). Under WIS. STAT. § 809.23(3), a party may not cite to an unpublished opinion as precedent or authority. See City of Madison v. Lange, 140 Wis.2d 1, 6 n. 2, 408 N.W.2d 763 (Ct.App.1987).
[9] Medical Protective also argues that it is shielded from judgment under the Direct Action Statute, WIS. STAT. § 632.24. Medical Protective's argument is premised on an assumption that its policy does not cover liability imposed on Rankin in this case. Because we conclude otherwise, we reject this argument.
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Case: 14-10625 Date Filed: 06/16/2015 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 14-10625; 14-13344
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-01493-TWT-GGB
BRENDALYNNE DUNCAN,
TYRONE DUNCAN,
Plaintiffs - Appellants,
versus
CITIMORTGAGE, INC.,
PENDERGAST & ASSOCIATES, P.C.,
HOWELL A. HALL,
JOHN F. PENDERGAST, JR.,
Defendants - Appellees.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(June 16, 2015)
Case: 14-10625 Date Filed: 06/16/2015 Page: 2 of 10
Before HULL, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Appellants Brendalynne and Tyrone Duncan appeal the district court’s
grants of motions to dismiss filed by Appellees Citimortgage, Inc., Pendergast &
Associates, P.C., Howell A. Hall, and John F. Pendergast. Their attorney, Deirdre
M. Stephens-Johnson, appeals the district court’s imposition of sanctions under
Rule 11 of the Federal Rules of Civil Procedure. After review of the briefs, we
affirm. Additionally, we deny Appellees’ motion for sanctions under Rule 38 of
the Federal Rules of Appellate Procedure.
Appellants filed a complaint alleging (1) wrongful foreclosure, (2) trespass,
(3) malicious and forcible eviction, (4) violations of Georgia Racketeering in
Corrupt Organizations Act (RICO), O.C.G.A. §§ 16-14-1–16-14-15, (5) intentional
infliction of emotional distress (IIED), and (6) violations of the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692–1692p, in Georgia state
court. They also claimed attorney’s fees and punitive damages. Appellees
removed to the District Court for the Northern District of Georgia based on federal
question and diversity jurisdiction. They subsequently filed motions to dismiss for
failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The district court granted the motions. Appellants appealed that dismissal as to all
counts except the eviction count, waiving any challenge to the dismissal of that
2
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count. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir.
2004) (refusing to consider an issue not properly raised on appeal).
After the notice of appeal was filed, Pendergast & Associates, Hall, and
Pendergast (Pendergast Appellees) moved for Rule 11 sanctions against Stephens-
Johnson. The district court granted the motion, and a notice of appeal specifying
Appellants as the parties taking the appeal was filed. 1 The Pendergast Appellees
also move this court for Rule 38 sanctions against Stephens-Johnson.
I.
We review a district court order granting a motion to dismiss de novo.
Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002). Contrary to
Appellants’ contention that the district court incorrectly applied federal pleading
standards, rather than the more lenient Georgia pleading standards, federal district
courts apply federal pleading standards after removal. Fed. R. Civ. P. 81(c)(1).
A.
The district court rejected Appellants’ contention below that CitiMortgage
was required to identify the secured creditor in the notice of foreclosure, citing You
1
Under Rule 3(c) of the Federal Rules of Appellate Procedure, a notice of appeal from an
order granting sanctions against counsel generally should specify counsel as the appellant. See
Holloman v. Mail-Well Corp., 443 F.3d 832, 844–45 (11th Cir. 2006). However, “[a]n appeal
must not be dismissed . . . for failure to name a party whose intent to appeal is otherwise clear
from the notice.” Fed. R. App. P. 3(c)(4). Because the notice of appeal from the sanctions order
was filed separately and designated the sanctions order, it is “objectively clear that [Johnson]
intended to appeal.” See Bogle v. Orange Cnty. Bd. of Cnty. Comm’rs, 162 F.3d 653, 660 (11th
Cir. 1998) (internal quotation marks omitted). We thus have jurisdiction over the appeal of the
sanctions order.
3
Case: 14-10625 Date Filed: 06/16/2015 Page: 4 of 10
v. JPMorgan Chase Bank, 743 S.E. 2d 428 (Ga. 2013). Appellants pivot here and
argue instead that CitiMortgage was without authority to negotiate the terms of the
mortgage and that Appellees failed to name the entity with such authority. See
O.C.G.A. § 44-16-162.2(a). Because Appellants raise this argument for the first
time on appeal, we will not consider it. See Access Now, Inc., 385 F.3d at 1331.
Appellants then conclusorily assert, again without record citations and
despite conclusive record evidence to the contrary, that Appellees failed to comply
with the security deed. In fact, the district court cited record evidence of
Appellees’ compliance with the security deed’s requirements, and Appellants fail
to so much as even acknowledge the existence of that evidence in their brief, much
less explain why it fails to establish Appellees’ compliance. Because this
argument is no more than a restatement of arguments presented below, and because
it flies in the face of record evidence, we will not consider it. See Flanigan’s
Enters., Inc. of Ga. v. Fulton Cnty., 242 F.3d 976, 987 n.16 (11th Cir. 2001) (per
curiam), superseded by ordinance, Fulton Cnty. Code § 18-79(17), as recognized
in Flanigan’s Enters, Inc. of Ga. v. Fulton Cnty., 596 F.3d 1265 (11th Cir. 2010).
B.
Because the trespass, RICO, and IIED claims required Appellants to
successfully plead wrongful foreclosure to move forward, the district court
properly dismissed those claims after dismissing the wrongful foreclosure claim.
4
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Appellants alleged that Appellees trespassed “by wrongfully and unlawfully
exercising the power of sale and filing the dispossessory action against
[Appellants],” in other words, by wrongfully foreclosing. The failure to state a
claim for wrongful foreclosure, then, leaves the trespass claim toothless. See
Simpson v. Jones, 186 S.E. 558, 560 (Ga. 1936) (“The foreclosure proceedings not
being void for any reason assigned, the petition failed to set forth a cause of action
for trespass.”). Consequently, the trespass claim was properly dismissed.
The RICO claim likewise fails. In Georgia, “[t]o establish that [a] defendant
engaged in racketeering activity, a plaintiff must show that the defendant
committed predicate offenses (set forth in O.C.G.A. § 16-14-3(9)) at least twice.”
Cobb Cnty. v. Jones Grp. P.L.C., 460 S.E. 2d 516, 521 (Ga. Ct. App. 1995). The
Appellants alleged theft by conversion, theft by deception, and mail fraud as the
predicate acts. The specific factual basis for these allegations, however, is the
same used to support their wrongful foreclosure claim. Therefore, because none of
the underlying conduct was unlawful, the RICO claim was also properly dismissed.
Appellants also failed to state an IIED claim. In Georgia, an IIED claim
requires (1) intentional or reckless conduct; (2) extreme and outrageous conduct;
(3) a causal connection between the alleged conduct and the emotional distress;
and (4) severe emotional injury. Jarrard v. United Parcel Serv., Inc., 529 S.E. 2d
144, 146 (Ga. Ct. App. 2000). The complaint alleged bad faith and referenced the
5
Case: 14-10625 Date Filed: 06/16/2015 Page: 6 of 10
same facts alleged to support the wrongful foreclosure claim. Again, because the
wrongful foreclosure claim failed, the IIED count was properly dismissed. See
Racette v. Bank of Am., N.A., 733 S.E. 2d 457, 465 (Ga. Ct. App. 2012) (“[T]he . . .
allegation that the appellees conducted the 2011 Foreclosure Sale despite knowing
of inaccuracies in the published foreclosure advertisements cannot be described as
extreme, outrageous, atrocious, intolerable or beyond the bounds of decency.”
(internal quotation marks omitted)).
Finally, the FDCPA claim and the requests for attorney’s fees, costs, and
punitive damages were properly dismissed. Appellants failed to allege any facts
indicating that any of Appellees were debt collectors as defined in the FDCPA.
See 15 U.S.C. § 1692a(6); Harris v. Liberty Cmty. Mgmt., Inc., 702 F.3d 1298,
1304 (11th Cir. 2012) (affirming grant of summary judgment where defendant did
not meet § 1692a(6) definition of “debt collector”). Appellants also failed to allege
facts supporting the requests for fees, costs, and punitive damages.
Accordingly, the district court properly granted the motion to dismiss.
II.
We review the imposition of sanctions under Rule 11 for an abuse of
discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S. Ct. 2447,
2461 (1990). In her appeal of the grant of the Pendergast Appellees’ sanctions
motion, Stephens-Johnson first argues that the Pendergast Appellees did not
6
Case: 14-10625 Date Filed: 06/16/2015 Page: 7 of 10
comply with the notice requirement found in Rule 11(c)(2). The district court,
however, cited record evidence in finding that the Pendergast Appellees did
comply with the notice requirement, and Stephens-Johnson gives us no reason to
believe that that finding was clear error. See id. at 400–01, 110 S. Ct. at 2458
(noting that appellate courts should review underlying factual issues for clear error
when considering whether the imposition of sanctions was an abuse of discretion).
Stephens-Johnson next argues that it was improper to impose sanctions
against her because another attorney initiated the wrongful foreclosure action, and
Johnson took over as lead attorney only after removal to federal court. However,
in concluding that “Rule 11(b) properly applie[d] to the conduct of . . . Stephens-
Johnson,” the district court noted that, although she “did not file the original
complaint in state court, . . . she has repeatedly advocated [Appellants’] complaint,
as originally filed.” More specifically, Stephens-Johnson “had numerous
opportunities to dismiss” the Pendergast Appellees, yet she refused to do so. The
fact that another attorney originally filed the action, then, does not defeat the
imposition of sanctions.
The imposition of sanctions also has substantive support. Rule 11 sanctions
are warranted
(1) when a party files a pleading that has no reasonable factual basis;
(2) when the party files a pleading that is based on a legal theory that
has no reasonable chance of success and that cannot be advanced as a
7
Case: 14-10625 Date Filed: 06/16/2015 Page: 8 of 10
reasonable argument to change existing law; [or] (3) when the party
files a pleading in bad faith for an improper purpose.
Didie v. Howes, 988 F.2d 1097, 1104 (11th Cir. 1993) (internal quotation marks
omitted). The district court did not abuse its discretion in imposing sanctions
based on all three of the above criteria. First, as to the lack of factual basis, the
complaint alleged no unlawful conduct on the part of the Pendergast Appellees.
Second, You, 743 S.E. 2d 428,2 and the fact that the Pendergast Appellees were not
in contractual privity with Appellants rendered the wrongful foreclosure claim
against the Pendergast Appellees legally baseless. Third, the district court
observed that Stephens-Johnson failed to address why Hall and Pendergast were
included as defendants, despite having multiple opportunities to do so, and the
court noted that that failure was indicative of bad faith. Thus, the imposition of
sanctions was not an abuse of discretion.
III.
The Pendergast Appellees move this court to grant further sanctions against
Stephens-Johnson pursuant to Rule 38 of the Federal Rules of Appellate
Procedure. They argue that Stephens-Johnson’s failure to comply with appellate
deadlines and her false certification to this court regarding arranging payment to
2
Stephens-Johnson argues that You cannot demonstrate a lack of a reasonable chance of
success because it was decided after the complaint was filed and after the case was removed to
the district court. However, Rule 11 broadly applies to “pleading[s], written motion[s], or other
written paper[s],” which includes Stephens-Johnson’s response to the motion to dismiss, which
was filed after You was decided. See Fed. R. Civ. P. 11(b). Accordingly, her failure to amend
the complaint or account for You in her responses are grounds for sanctions.
8
Case: 14-10625 Date Filed: 06/16/2015 Page: 9 of 10
the court reporter for the transcript of the district court proceedings warrant Rule
38 sanctions. The Pendergast Appellees also cite a complaint—alleging the same
“nucleus of facts” as in the original complaint, which was dismissed, and naming
the Pendergast Appellees as defendants—filed in state court, after the district
court’s dismissal, as evidence of Stephens-Johnson’s resort to dilatory tactics in
these proceedings generally. Stephens-Johnson responds that her delay has been
nominal and has not prejudiced the Pendergast Appellees. She also points out that
the complaint referenced in the Rule 38 motion was filed by a different attorney
and that the briefing schedule does not issue until a transcript has been filed, but
she fails to address the false certification. The Pendergast Appellees reply that
their reference to the complaint, which was filed by an attorney who shares an
address with Stephens-Johnson and who initiated this litigation, is not an
independent basis for sanctions, only a demonstration of a pattern of unreasonable
conduct and dilatory tactics.
Stephens-Johnson’s conduct of this appeal, such as her failure to so much as
even acknowledge record evidence squarely contradicting Appellants’ factual
assertions, certainly deserves reprimand.3 However, we exercise the discretion
3
First, as to the keystone of the complaint, the wrongful foreclosure claim, Stephens-
Johnson merely rehashes arguments rejected by the district court or fails to address the district
court’s conclusions. See Finch v. Hughes Aircraft Corp., 926 F.2d 1574, 1579 (Fed. Cir. 1991).
In fact, that the district court imposed sanctions for those arguments when originally made
further supports the case for imposing sanctions on Stephens-Johnson when she made them a
second time. See id. Appellants also reassert conclusory “facts” that are clearly rebutted by the
9
Case: 14-10625 Date Filed: 06/16/2015 Page: 10 of 10
afforded us by Rule 38 in declining the invitation to impose sanctions on Stephens-
Johnson. See Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 7, 107 S. Ct. 967, 970
(1987) (“Rule 38 affords a court of appeals plenary discretion to assess ‘just
damages’ . . . .”); Waters v. Comm’r, 764 F.2d 1389, 1389 n.2 (11th Cir. 1985) (per
curiam) (noting our “ample discretion to award attorney’s fees under Rule 38”).
AFFIRMED.
record, as noted by the district court. See id.; Cramer v. Florida, 117 F.3d 1258, 1265 (11th Cir.
1997) (awarding sanctions for allegations that were “nothing more than bald conclusions).
Stephens-Johnson’s additional misconduct—failure to meet deadlines and her false
certification—corroborate that the appeal was frivolous as argued. See Romala Corp. v. United
States, 927 F.2d 1219, 1222 (Fed. Cir. 1991).
Because the district court imposed sanctions against Stephens-Johnson pursuant to Rule
11, we could conclude that her continued pursuit of the same claims, without telling us why the
district court was incorrect in dismissing Appellants’ keystone claim of wrongful foreclosure in
the first place and in spite of clear record evidence contradicting the brief’s factual assertions,
warrants sanctions equal to the Pendergast Appellees’ attorney’s fees and double costs in
defending the appeal. See Taiyo Corp. v. Sheraton Savannah Corp., 49 F.3d 1514, 1515 (11th
Cir. 1995) (per curiam) (awarding attorney’s fees and double costs where the complaint was
dismissed and Rule 11 sanctions imposed in the district court).
10
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290 F.2d 321
Morris W. LIPP, trading as Midwest Poster Exchange, Appellant in No. 13448,Benjamin Siegel, trading as Theatre Advertising Company, Appellant in No. 13449,Fannie Schrader, Administratrix of the Estate of Jay Schrader, trading as Charlotte Poster Exchange, Deceased, Appellant in No. 13450,David Mitchel, trading as Southwest Poster Service, Appellant in No. 13451,Jacob Riff, Appellant in No. 13452,Harry Vogelstein, trading as Baltimore Poster Company, Appellant in No. 13453,v.NATIONAL SCREEN SERVICE CORPORATION, Loew's Incorporated, Twentieth Century Fox Film Corporation, RKO Radio Pictures, Inc., Columbia Pictures Corporation, United Artists Corporation, Warner Brothers Pictures, Inc., Warner Bros. Picture Distributing Corporation, Paramount Pictures, Inc., Paramount Film Distributing Corporation, Universal Pictures Company, Inc., Universal Film Exchanges, Inc.Charles LAWLOR and Mitchell Pantzer, co-partners trading as Independent Poster Exchange, Morris J. Lipp, trading as Midwest Poster Exchange, Benjamin Siegel, trading as Theatre Advertising Company, Jay Schrader, trading as Charlotte Poster Exchange, Dave Mitchel, trading as Southwest Poster Service, Jacob Riff, Harry Vogelstein, trading as Baltimore Poster Company, Appellants in No. 13454,v.NATIONAL SCREEN SERVICE CORPORATION, Loew's Incorporated, Twentieth Century Fox Film Corporation, RKO Radio Pictures, Inc., Columbia Pictures Corporation, United Artists Corporation, Warner Brothers Pictures, Inc., Warner Bros. Picture Distributing Corporation, Paramount Film Distributing Corporation, Universal Film Exchanges, Inc.
Nos. 13448-13454.
United States Court of Appeals Third Circuit.
Argued April 18, 1961.
Decided May 2, 1961.
Rehearing Denied May 25, 1961.
Francis T. Anderson, Philadelphia, Pa., for appellants.
Walter S. Beck, New York City, W. Bradley Ward, Philadelphia, Pa. (Louis Nizer, New York City, Abraham L. Freedman, Louis J. Goffman, Philadelphia, Pa., Edward W. Mullinix, Philadelphia, Pa., Phillips, Nizer, Benjamin, Krim & Ballon, New York City, Wolf, Block, Schorr & Solis-Cohen, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., of counsel on the brief), for appellees.
Before GOODRICH, KALODNER and STALEY, Circuit Judges.
PER CURIAM.
1
In the District Court for the Eastern District of Pennsylvania there were seven cases brought against a group of defendants, the principal one of which was National Screen Service Corporation. These seven cases, separately brought, all alleged the same claim against the defendants. There had been a series of pretrial conferences between the trial judge and the lawyers for the parties, the plaintiffs all being represented by the same counsel. At the conclusion of the last of these conferences a stipulation was entered into. One of the provisions was that the demand for jury trial was dropped. Paragraph 3 of the stipulation provides:
2
"In the remaining six cases if, by final judgment in whatever shall have been the court of last resort, it is determined in Civil Action No. 10020 that no conspiracy or unlawful monopoly existed, that finding shall be determinative of that issue in the remaining six cases. On the contrary, if such final determination therein shall be that the unlawful conspiracy or monopoly did exist, then the remaining six cases shall be consolidated for trial and tried without a jury."
3
This stipulation was agreed to before the court by all the lawyers concerned in the case.
4
The Civil Action referred to in the above quoted paragraph was the Lawlor case. This was tried in the district court and resulted in full findings of fact and conclusions of law unfavorable to the plaintiffs. The district court's judgment was affirmed by this Court in an opinion reported at 3 Cir., 1959, 270 F.2d 146. Certiorari was denied by the Supreme Court 1960, 362 U.S. 922, 80 S.Ct. 676, 4 L.Ed.2d 742. The trial judge then entered summary judgment for the defendants in the other six cases in accordance with the stipulation quoted above. The plaintiffs appeal. Counsel says that he had no authority to enter into such a stipulation and cites us cases holding that a lawyer without authorization cannot compromise the client's case.
5
The agreement made among counsel was no compromise of a lawsuit. It was, instead, a common sense way of handling several cases involving the same points. The judge could have ordered a consolidated trial for all of them. See Fed. R.Civ.P. 42(a), 28 U.S.C. It was considered more feasible to handle the litigation in the manner stipulated for. Defendants took their chances on judgments against them in seven cases if the Lawlor case was won. Plaintiffs took their chances on losing if the Lawlor case was lost. There is no doubt in our minds that this arrangement to expedite this litigation to final conclusion was well within the authority of the lawyers who participated.
6
The judgment of the district court will be affirmed.
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91 Ariz. 363 (1962)
372 P.2d 703
YOUNG CANDY & TOBACCO COMPANY and John Paul Cox, Appellants,
v.
Valentin MONTOYA, Appellee.
No. 6849.
Supreme Court of Arizona, In Division.
June 20, 1962.
*365 McCarty, Chandler, Tullar & Udall, Tucson, for appellants.
Merchant, Parkman, Miller & Pitt, Tucson, for appellee.
J. SMITH GIBBONS, Superior Court Judge.
The appellee, Valentin Montoya, sued the Young Candy & Tobacco Company and John Paul Cox, appellants, for personal injuries alleged to have resulted from the negligent operation of a motor vehicle. The parties will be designated as they appeared in the trial court.
The accident occurred at the intersection of South Sixth Avenue, running north and south, and Pennsylvania Drive, running east and west in the City of Tucson. The defendant, Cox, was traveling north in the lane nearest the center of the road on South Sixth Avenue in a vehicle owned by his employer, Young Candy & Tobacco Company, at a speed of approximately 25 miles per hour. The plaintiff was within a marked pedestrians' crosswalk on South Sixth Avenue on the north side of said intersection. There were no traffic or street lights at this location and defendants concede that the headlights of on-coming traffic affected defendant, Cox' visibility to *366 some extent; that he did not change his speed for reasons of visibility, and that he had considerably less vision in his left eye than in his right.
This cause was tried before a jury and a verdict returned for the plaintiff in the sum of $25,000. From the judgment based thereon and the denial of a motion for a new trial defendants appeal.
The assignments of error relate to the giving of certain instructions, refusing to declare a mistrial or grant a new trial on the ground of misconduct of plaintiff's counsel in his closing argument to the jury and in denying the motion for a new trial on the ground of excessive damages.
Plaintiff's instructions numbered 1 and 3 are as follows:
"PLAINTIFF'S REQUESTED INSTRUCTION NO. 1
"You are instructed that the owner of an automobile has the right to use the highways of the state provided, in using them, he uses reasonable care and caution for the safety of others. It is the operator's duty to keep his motor vehicle always under control so as to avoid a collision with others using the highway and he has no right to assume that the road is clear, but under all circumstances and at all times must be vigilent [sic] and must anticipate and expect the presence of others. And if he fails to use such reasonable care and caution and thereby injures another such failure on his part would constitute negligence and he would be liable in damages for any injury proximately caused by his negligence.
"You are instructed that pedestrians have a right to travel upon a public highway and an automobile driver is required to drive carefully to prevent danger to others using the highway. The driver has no right to assume that the road is clear but under all circumstances and at all times must be vigilent [sic] and must anticipate the presence of others and keep his machine under such control as will enable him to avoid collision with other persons using proper care and caution. [Pearson & Dickerson v. Harrington] 60 Ariz. 354 [137 P.2d 381]"
"PLAINTIFF'S REQUESTED INSTRUCTION NO. 3
"The law imposes upon the driver of any vehicle using a public highway and upon a pedestrian, the same duty, each to exercise ordinary care to avoid causing an accident from which injury might result. The pedestrian's duty includes exercising ordinary care to avoid placing himself in danger. The driver's duty requires him to be vigilent [sic] at all times keeping a lookout for traffic and other conditions to be reasonable [sic] anticipated, and to keep *367 the vehicle under such control that, to avoid a collision with any person, he can stop as quickly as might be required of him by eventualities that would be anticipated by an ordinary prudent driver in like position."
Defendants assign as error the giving of Instruction No. 1 on the grounds, first, that it is repetitious in that it contains some of the same subject matter set forth in Instruction No. 3; and, secondly, that it placed a higher legal duty on the defendants than the law requires, in that it did not limit such duty to act as a reasonably prudent person under the circumstances.
The foregoing instructions do contain some of the same rules of law couched in differing language, but the repetition complained of here is not of such a nature as to constitute error on that ground. In the case of Reah v. Jupin, 68 Ariz. 335, 340, 206 P.2d 558, 561, we said:
"It is not reversible error for the court to give more than one instruction in different words covering the same question. * * *"
The second objection is without merit. This identical instruction was given and approved by this court in the case of Pearson & Dickerson Contractors Inc. v. Harrington, 60 Ariz. 354, 361, 137 P.2d 381, 384. The same arguments were advanced there as are here presented and in reply thereto we said:
"These instructions do not place `an unconscionable burden' on defendant but lay down a rule necessary for the safety of the public and one not difficult to follow by persons exercising ordinary care, and of course they did not tell the jury that a driver of an automobile is liable for a collision with a pedestrian `under any and all circumstances,' * * *."
Defendants' suggestion that this rule is modified in Krauth v. Billar, 71 Ariz. 298, 226 P.2d 1012, is not true, as an examination of this case will readily disclose. We then held, and now reaffirm, that this instruction correctly states the law in this jurisdiction and in the public interest we see no reason to change it.
Defendants complain of plaintiff's Instruction No. 4 relating to the aggravation, by defendants' negligence, of a previously existing condition and that portion of No. 6 referring to a confused or incapacitated person, on the ground that there was no evidence of such facts in the case. This position is not well taken for there is such evidence, some of which is quoted by defendants in their briefs. The weight to be given such evidence is within the province of the jury and it is the duty of the Court to instruct the jury on all phases of the law applicable to the various fact situations developed during the course of the trial. Reah v. Jupin, supra.
*368 Defendants further assert error in giving instruction No. 6 for the reason that it placed an absolute liability on a defendant who strikes a pedestrian in a crosswalk. This is sometimes referred to as the negligence per se instruction and it does not tell the jury that the driver of an automobile is absolutely liable for a collision with a pedestrian in a crosswalk under any and all circumstances. As we said in City of Phoenix v. Mullen, 65 Ariz. 83, 86, 174 P.2d 422, 424:
"We are committed to the doctrine that if the proximate cause of an injury to another is the failure of the driver of the vehicle to comply with the positive directions of the statute relating to the operation of motor vehicles, such failure or violation is negligence per se and actionable negligence." (Citing cases)
The statutory provisions embodied therein are Sections 28-792 and 28-794, A.R.S.
Defendants concede the following: That the violation of a statute relating to the operation of a motor vehicle is actionable negligence if it is the proximate cause of the injury; that the plaintiff was hit in the crosswalk at a location where there were no traffic control signals or street lights; that the headlights of on-coming traffic affected defendant, Cox', visibility to some extent; that he did not change his speed of 25 miles per hour for reasons of visibility; that he did not sound his horn and that plaintiff's injuries were proximately caused by the accident.
In light of these admissions and the doctrine to which we are committed it is apparent that defendants' position has no basis in law or in fact. To adopt their theory would renounce a rule of law of long standing, deeply embedded in our judicial decisions, upon a state of facts that are far from being a model of the care and caution that is needed to reduce the needless loss of life and property on our public highways.
Defendants claim error by the trial court in refusing either to declare a mistrial or grant a new trial on the ground of misconduct of plaintiff's attorney in his closing argument to the jury. No objection was made to the statements until after the jury had retired, thereby depriving the trial court of an opportunity to correct any errors it might have made and to cure any prejudicial conduct before the case was submitted to the jury. The presumption is that an admonition to the jury by the court will remove the effect of improper remarks if timely objection is made before the jury retires, unless it appears that the misconduct is so serious that no admonition could undo the damage. Schmerfeld v. Hendry, 74 Ariz. 159, 245 P.2d 420. However, it is the general rule that when no objection is made at the time the remarks were uttered the error, if any, is waived. See Bruno v. *369 San Xavier Rock & Sand Co., 76 Ariz. 250, 263 P.2d 308.
The trial court heard the evidence and the arguments in question and had the complete record before it. In denying defendants' motion for a mistrial or a new trial it held that such argument was not so prejudicial as to warrant a new trial. We have examined the record and will not under the circumstance disturb the court's ruling.
The last assignment of error is the denial of defendants' motion for a new trial on the ground that the damages were so excessive that the verdict was the result of passion and prejudice, or in the alternative the court should have ordered a remittitur for the reason that the damages awarded were excessive.
Early in our judicial history, in the case of Southern Pacific Co. v. Tomlinson, 4 Ariz. 126, 132, 33 P. 710, 711, we laid down the rule:
"* * * Of course, if it is apparent to the trial court that the verdict was the result of passion or prejudice, a remittitur should not be allowed, but the verdict should be set aside. * *" (Emphasis original.)
Defendants rely upon alleged excessive damages to support their motion to set aside the verdict on the ground of passion and prejudice of the jury. Under the circumstances here this conclusion has its limitations, for in the case of Miller v. Condon, 66 Ariz. 34, 40, 182 P.2d 105, 109 we said:
"* * * If it appears manifest that the jury were actuated by prejudice or passion its verdict may not stand; but an exaggerated measurement of damages in a field in which the ideas of reasonable men may differ does not of itself lead to the conclusion that the verdict was based upon motives improper for the jury to entertain. * *" (Emphasis supplied.)
The question of whether the verdict was based on improper motives and must be set aside, or was an exaggerated measurement of damages and should be reduced, or should stand, must be answered in the light of all the facts and circumstances in the case. There is no rule of thumb by which the courts can determine at what point a verdict becomes excessive and should be reduced or at what level passion and prejudice may be determined therefrom. On this problem Justice Udall, speaking for the Court in the case of Stallcup v. Rathbun, 76 Ariz. 63, 66, 258 P.2d 821, 824 said:
"* * * A flagrantly outrageous verdict was declared by this court in Standard Oil Co. v. Shields, supra, [58 Ariz. 239, 119 P.2d 116] to be a fifth ground upon which to predicate a finding of passion and prejudice. But the yardstick to be applied in determining whether such a condition exists is *370 found in the case of United Verde Copper Co. v. Wiley, 20 Ariz. 525, 183 P. 737, 738, wherein Justice Ross quoted the following rule laid down by Chancellor Kent in Coleman v. Southwick, 9 Johns, N.Y. 45, 6 Am.Dec. 253:
"* * * `The damages, therefore, must be so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable, and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line, for they have no standard by which to ascertain the excess.'"
The question is whether the verdict rendered here is so manifestly unfair, unreasonable and outrageous as to shock the conscience of the Court. Our answer to this query is in the negative.
The remaining question is whether the verdict is an exaggerated measurement of damages and should be reduced or left undisturbed. The jury and the trial court are in a much better position than the appellate judges to measure and determine the damages that will compensate the plaintiff for his injuries. They have an opportunity of seeing him and to discern his manner of testifying, his intelligence and capacity, to note his physical condition and other living evidences bearing upon the issue, including the attending circumstances, the larger part of which the appellate court is deprived. The statement of this court in Ross v. Clark, 35 Ariz. 60, 67, 274 P. 639, 641, and repeated in Rogers v. Bryan, 82 Ariz. 143, 309 P.2d 773 may well be cited here as appropriate to the issue at hand:
"We realize that a jury's verdict ought not to be vacated or the amount thereof reduced except for the most cogent reasons. The rule here and elsewhere is that the verdict will be left undisturbed if reasonably supported by the evidence, when the trial is free from error. There is no absolute fixed legal rule of compensation in actions of this kind, and as a reviewing court we feel we ought not to interfere with the verdict unless it clearly appears that the jury has mistakenly applied the wrong principles in estimating the damages, or was actuated by improper motives or bias indicating passion or prejudice. This is because in actions for personal injuries the law does not attempt to fix precise rules for the measure of the damages, but leaves their assessment to the good sense and unbiased judgment of the jury. * * *"
The trial court, with the evidence and the surrounding circumstances at hand, sustained the verdict of the jury and we have *371 examined the record and find no reasonable grounds to disturb that ruling.
Judgment affirmed.
JENNINGS and LOCKWOOD, JJ., concur.
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212 Pa. Superior Ct. 254 (1968)
Commonwealth, Appellant,
v.
Payton.
Superior Court of Pennsylvania.
Argued March 19, 1968.
June 14, 1968.
*255 Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and HANNUM, JJ.
Michael M. Baylson, Assistant District Attorney, with him Michael J. Rotko, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Melvin Dildine, Assistant Defender, with him Herman I. Pollock, Defender, for appellee.
*256 OPINION BY SPAULDING, J., June 14, 1968:
This is an appeal by the Commonwealth from an order of the Court of Quarter Sessions of Philadelphia County suppressing evidence seized from the residence of Mattie Velma Payton, appellee.[1] The residence, 1726 West Oxford Street, Philadelphia, Pennsylvania, was searched on April 18, 1967 pursuant to a warrant, one copy book and 20 slips of paper containing approximately 3,185 plays being seized.[2]
The sole issue raised on this appeal is whether the affidavit on which the search warrant was based established probable cause.
In passing on the validity of a search warrant we may consider only information brought to the magistrate's attention. Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245 (1958). "It is fundamental that facts or circumstances must be presented to the magistrate under oath or affirmation from which he may make an independent and detached appraisal that probable cause for the search exists . . . ." Commonwealth v. Rose, 211 Pa. Superior Ct. 295, 298, 235 A. 2d 462, 464 (1967); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964). In making such an appraisal, the affidavit must be read in a common sense and nontechnical manner. Rose, supra; United States v. Ventresca, 380 U.S. 102 (1965).
The leading case of Aguilar v. Texas, supra, establishes the following two-pronged constitutional test to be used when assessing the validity of search warrants: "Although an affidavit may be based on hearsay information and need not reflect the direct personal observations *257 of the affiant . . . the magistrate must be informed of some of the underlying circumstances from which the informant concluded that [the paraphernalia was] where he claimed [it was], and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed . . . was `credible' or his information `reliable'." (at 114)
In the instant case the warrant was based on the following: "Information has been received from a source which has resulted in numerous arrests and convictions in cases of this nature in the past that the above person is engaged in illegal numbers activities inside the above location by use of the telephone. Informant further states that he has personal knowledge of this due to the fact that he has called in bets to this person on the telephone. During the surveillance maintained on the above date no unusual traffic was observed, however, due to the nature of this activity numerous attempts were made to call the phone at this location between the hours of 10:30 A.M. and 1:00 P.M. with the result the phone was constantly busy. This, plus my information give me probable cause to request issuance of this warrant." This meets the requirements of Aguilar for the affiant has indicated the basis of his belief that the informant was reliable that he had provided information which had resulted in numerous arrests and convictions in similar cases in the past and the information was corroborated by the affiant's own investigation concerning the use of the phone by appellee. The warrant included the circumstances underlying the informant's conclusion, namely that he (the informant) had personally placed bets with appellee by telephone. Finally, the affiant's own investigation indicating that he found appellee's phone constantly busy during the time when lottery activity usually occurred strengthens *258 the reliability of the informant. That the affiant found "no unusual traffic" entering or leaving appellee's residence does not diminish the probable cause.
The instant warrant provides far more than the warrant in Commonwealth v. Smyser, 205 Pa. Superior Ct. 599, 211 A. 2d 59 (1965), which averred that "as a result of investigations the dependent verily believes that there is sufficient evidence to believe that a person or persons have or will conceal narcotics, dangerous drugs and paraphernalia pertaining to the use of narcotics on the premises of [giving address]." In Smyser we decided that "No substantiating facts are given upon which the magistrate might make an independent and detached appraisal of the probability that a crime had been or was being committed." Id., at 604. Similarly, in Commonwealth v. Alvarez, 208 Pa. Superior Ct. 371, 222 A. 2d 406 (1966), a warrant was found defective which merely asserted: "Very Reliable Information 100% In The Past, Surveilance [sic] Conducted 6-2-64 5-31-64."
In Commonwealth v. Ametrane, 205 Pa. Superior Ct. 567, 210 A. 2d 902 (1965), aff'd, 422 Pa. 83, 221 A. 2d 296 (1966), a search warrant was upheld which provided less probable cause than the warrant in the case at bar. In Ametrane the warrant stated: "Complaints and information received from persons of reliable and good reputation, which your affiant has reason to believe and does believe to be true and upon which he has relied in making this affidavit that accused takes horse bets over the telephone and from other persons at the above address all day. Personal knowledge, that County Detectives were assigned to investigate the original complaint; that the undisclosed agent reported the placing of horse bets and that your affiant has personally observed this location for some time and from their reports and my personal knowledge *259 and experience in such activities the original complaint has been corroborated." Id., at 570-571. The Ametrane warrant is less specific regarding the informant's information or the details of his reliability in the past and there is no statement of the results of the surveillance.
We conclude that the warrant in the instant case provided a basis for the independent and impartial magisterial determination of probable cause required by Aguilar and the motion to suppress was improperly granted.
Reversed and remanded.
NOTES
[1] Commonwealth v. Bosurgi, 411 Pa. 56, 190 A. 2d 304 (1963), permits such an appeal where the Commonwealth can no longer proceed with the prosecution after the evidence in question is suppressed. This case is in that category.
[2] Appellee was arrested on the same day for a lottery violation and subsequently indicted.
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110 F.3d 34
UNITED STATES of America, Appellee,v.Curtis James JONES, Appellant.
No. 96-3105.
United States Court of Appeals,Eighth Circuit.
Submitted Feb. 12, 1997.Decided April 1, 1997.
Barry V. Voss, argued, Minneapolis, MN, for appellant.
Nathan P. Petterson, argued, Minneapolis, MN, for appellee.
Before MAGILL, BEAM, and LOKEN, Circuit Judges.
MAGILL, Circuit Judge.
1
Curtis James Jones appeals his jury conviction of attempting to distribute approximately 108.6 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a), 846 (1994). On appeal, Jones challenges the sufficiency of the evidence for his conviction and claims that the district court1 abused its discretion by admitting evidence of other drug crimes committed by Jones in 1995. We affirm.
I.
2
Jones's arrest was the result of a police sting operation set up with the help of another arrestee, Gregory Hopkins. Hopkins had been arrested on January 15, 1996, after attempting to sell six ounces of crack cocaine to an undercover police officer. A few days later, on January 20, 1996, while cooperating with the police, Hopkins promised to arrange a drug transaction with a person known as "Too Tall," who was later identified as Jones. Hopkins claimed, and later testified in court, that during 1995 he had purchased from Jones between two and five ounces of crack cocaine on each of fifteen to twenty separate occasions.
3
That same day, Hopkins contacted Jones and arranged to buy four ounces of crack cocaine for $1200 an ounce. Later that afternoon, Hopkins paged Jones, and left his home phone number. Not long thereafter, Jones returned Hopkins's call. Hopkins just said, "I'm ready," to which Jones replied, "Here I come."
4
The police gave Hopkins $4000 in "show money." The police wired Hopkins and arranged a verbal as well as a visual signal for the police to arrest Jones: when Hopkins had completed the transaction, he was to say that the rest of the money was in his shoe and then lower his jacket hood.
5
Jones arrived at the arranged meeting place in his car. Hopkins joined Jones in Jones's car. During the transaction, the wire failed, so the police arrested Jones only after seeing the prearranged visual signal.
6
At the time of the arrest, there were two capsules containing crack cocaine and $4000 in cash between the driver's seat occupied by Jones and the passenger's seat occupied by Hopkins. The pager taken from Jones had Hopkins's phone number recorded three times in the pager's memory.
7
Hopkins testified at Jones's trial that he had bought crack cocaine from Jones in the car. The $4000 in cash and the two capsules of crack cocaine were introduced into evidence as well. Also introduced at trial was evidence seized in August 1995, approximately five months before the January 1996 arrest of Jones, pursuant to a search warrant authorizing the search of Jones's residence. Executed while Jones was present, the results of that search included $10,433 in cash, a portable O'haus scale, and approximately 13.5 grams of crack cocaine concealed inside the underwear Jones was wearing.
II.
8
When reviewing a challenge to the sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and make all reasonable inferences from the evidence that support the verdict. See United States v. Melina, 101 F.3d 567, 573 (8th Cir.1996). We will uphold the verdict if "there is an interpretation of the evidence that would allow a reasonable jury to conclude guilt beyond a reasonable doubt." United States v. Uder, 98 F.3d 1039, 1045 (8th Cir.1996). Finally, "[d]ecisions regarding the credibility of witnesses are to be resolved in favor of the jury's verdict." Id.
9
Jones's sole challenge to the sufficiency of the evidence is that Hopkins was not a credible witness because he was an admitted crack cocaine dealer and gang member and because he had an incentive to lie so that he could reduce his sentence. Because it properly falls to the jury to determine witness credibility, see id., Jones's argument is not convincing. Furthermore, we have already outlined other evidence besides Hopkins's testimony that supports Jones's conviction. Thus, viewed in the light most favorable to the guilty verdict, the evidence presented at trial established that Jones is guilty of attempting to distribute 108.6 grams of crack cocaine.
III.
10
Jones argues that the district court abused its discretion when it admitted evidence of his prior criminal wrongdoing, including (1) Hopkins's testimony of his prior illicit dealings with Jones and (2) testimony regarding the August 1995 search warrant.
11
The decision whether to admit evidence at trial lies within the sound discretion of the district court, and we will not reverse absent a showing of abuse of discretion. See United States v. Delpit, 94 F.3d 1134, 1146 (8th Cir.1996). Evidence of other crimes and wrongdoings besides those for which a defendant is being tried may be admitted at trial to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...." Fed.R.Evid. 404(b). This Court has held that such evidence is admissible when a defendant places his state of mind and intent at issue. See United States v. Thomas, 58 F.3d 1318, 1321 (8th Cir.1995).
12
At trial, Jones specifically put his knowledge and intent at issue. See Trial Tr. at 234. Because Jones put his knowledge and intent at issue, the trial court did not abuse its discretion by admitting Hopkins's testimony about his prior dealings with Jones and the testimony about the August 1995 search warrant.
13
Jones further argues that Hopkins's testimony was not proven by a preponderance of the evidence, a prerequisite for testimony of prior wrongdoing to be admitted under Rule 404(b). See United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir.1995). This challenge is merely a recycling of Jones's challenge to Hopkins's credibility as a witness, which we have already discussed and rejected.
IV.
14
For the foregoing reasons, we affirm.
1
The Honorable Michael J. Davis, United States District Judge for the District of Minnesota
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638 F.Supp. 638 (1986)
SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
v.
Giuseppe B. TOME, Paolo Mario Leati, Lombardfin S.p.A., Trasatlantic Financial Co., S.A., Nayarit Investments, S.A., Finvest Underwriters and Dealers Corp., Certain Purchasers of the Common Stock and Call Options for the Common Stock of St. Joe Minerals Corp., and Banca Della Svizzera Italiana, Defendants.
81 Civ. 1836(MP).
United States District Court, S.D. New York.
July 22, 1986.
MEMORANDUM ACCOMPANYING JUDGMENT
MILTON POLLACK, Senior District Judge.
Prejudgment Interest
The Findings and Opinion in this case, filed June 3, 1986, stated that prejudgment interest on the amounts subject to disgorgement in this civil insider trading action brought by the SEC, was to be calculated at the average prime rate for the period from March 11, 1986, the day after the unlawful purchase of St. Joe securities based on inside information, through the date of the Findings and Opinion. This amount turned out to be approximately 13% per annum. On further consideration, after hearing arguments of counsel, this Court amends the prior Opinion to rule that prejudgment interest shall be included in the judgment at the rate of 9% per annum *639 for the period from March 11, 1986, through July 22, 1986, the date of the entry of final judgment. This 9% shall be included on all of the unlawful St. Joe trades discussed in the Opinion; the main defendant, Tome, is liable for prejudgment interest both on trades in which he had a beneficial interest and, jointly and severally with his tippees, on trades in which he tipped others to trade but in which the SEC did not demonstrate that he had a beneficial interest.
"An award of pre-judgment interest in a case involving violations of the federal securities laws rests within the equitable discretion of the district court to be exercised according to considerations of fairness." Chris-Craft Industries, Inc. v. Piper Aircraft Corp., 516 F.2d 172, 191 (2d Cir.1975) (involving Section 14(e) of the Securities Exchange Act of 1934), rev'd on other grounds, 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977). Accord Blau v. Lehman, 368 U.S. 403, 414, 82 S.Ct. 451, 457, 7 L.Ed.2d 403 (1962) (involving insider's "short swing" profits under § 16(b) of the Securities Exchange Act of 1934); Woods v. Barnett Bank of Fort Lauderdale, 765 F.2d 1004, 1014 (11th Cir.1985) (violation of Rule 10b-5); Huddleston v. Herman & MacLean, 640 F.2d 534, 560 (5th Cir.1981) (violation of Rule 10b-5), aff'd in part, rev'd in part on other grounds, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983); Elkind v. Liggett & Myers, Inc., 635 F.2d 156, 173 n. 30 (2d Cir.1980) (violation of Rule 10b-5); Wessel v. Buhler, 437 F.2d 279, 284 (9th Cir.1971) (violation of Rule 10b-5).
Tome contends that it would be inequitable (and therefore an unlawful "penalty" in a disgorgement proceeding) to compel him to pay prejudgment interest on profits from his tippees' transactions since he did not have a beneficial or discretionary interest in those transactions. He contends that he should not have to pay prejudgment interest on money that he never received and for which he is liable only derivatively or vicariously.[1] In a Rule 10b-5 case, however, the Second Circuit has held that "the fact that the defendants were not unjustly enriched does not, standing alone, make it inequitable to compel them to pay interest." Rolf v. Blyth, Eastman Dillon & Co., 637 F.2d 77, 87 (2d Cir.1980).
In another insider trading case, another defendant put forth the argument Tome now asserts, claiming that its liability in damages for tippee trading should be limited because it did not benefit financially from the tippees' transactions. Elkind v. Liggett & Myers, Inc., 472 F.Supp. 123, 134 (S.D.N.Y.1978), aff'd in relevant part, 635 F.2d 156 (2d Cir.1980).[2] In rejecting this argument and imposing liability on the defendant both for damages and for prejudgment interest based on its tippees' transactions, the district court noted that the defendant "acted in order to obtain other benefits[,]" i.e., to foster goodwill between it and the financial analysts it tipped. Id. The Second Circuit affirmed the district court's finding of liability against the defendant based on its tippees' trades, specifically *640 noting that "[t]he district court acted well within its discretion in awarding prejudgment interest ..." on those transactions. Elkind, 635 F.2d at 169, 173 n. 30.
An award of prejudgment interest "is, in the first instance, compensatory[,]" but this "compensatory principle must be tempered by an assessment of the equities." Norte & Co. v. Huffines, 416 F.2d 1189, 1191 (2d Cir.1969), cert. denied sub nom., Muscat v. Norte & Co., 397 U.S. 989, 90 S.Ct. 1121, 25 L.Ed.2d 396 (1970). In this case, Tome willfully violated the securities laws and thereafter attempted, through lies and deceit, to cover-up his role in the illegal activity; he has remained outside the United States to avoid prosecution on related criminal charges. In short, the equities do not weigh in his favor. See id. ("personal wrongdoings" of defendant should be considered in evaluating whether an award of prejudgment interest is in accord with "fundamental fairness"); Wessel, 437 F.2d at 284 (remanding to district court for determination of prejudgment interest in a Rule 10b-5 case because of defendant's "flagrant use of false statements.").
In setting an appropriate prejudgment interest rate, this Court notes that the average prime rate during this period of time has been almost 13% per annum. Approximating what the return on a relatively safe investment during this time would have been, this Court sets the pre-judgment interest rate at 9% per annum. See Western Federal Corp. v. Davis, 553 F.Supp. 818, 821 (D.Ariz.1982) (for a violation of Section 12 of the Securities Act of 1933, using a prejudgment interest rate of 14.25%, which was the consumer money market rate, as a benchmark, and adjusting downwards depending on the degree to which plaintiffs lost the use of their money), aff'd sub nom., Western Federal Corp. v. Erickson, 739 F.2d 1439 (9th Cir. 1984).
So Ordered.
NOTES
[1] The Supreme Court has held that the tipper's conduct, almost invariably, is more culpable than that of the tippee. Bateman Eichler, Hill Richards, Inc. v. Berner, ___ U.S. ___, 105 S.Ct. 2622, 2630-31, 86 L.Ed.2d 215 (1985). Moreover, a tipper's liability is independent, not derivative, of the tippee's. SEC v. Tome, 81 Civ. 1836, slip op. at 58-59 n. 40 (S.D.N.Y. June 3, 1986). But if the tippee can be held liable as well, the tipper's liability is joint and several with that of his tippee. Bateman, 105 S.Ct. at 2630; Elkind, 635 F.2d at 169. A tippee, however, cannot be held liable unless the tipper is also liable. Dirks v. SEC, 463 U.S. 646, 662, 103 S.Ct. 3255, 3265, 77 L.Ed.2d 911 (1983). Given these propositions, it is illogical to argue, as Tome does, that a tippee's liability can be greater than that of the tipper, i.e., that, as to the tippee's trades, the tippee can be held liable for prejudgment interest but that the tipper cannot.
[2] In this case, however, there is evidence that Tome did benefit financially from the tippee transactions. Tome was to be paid $200,000 for the tip to Leati, a tip that Tome intended Leati use for the benefit of Leati's firm's, Lombardfin S.p.A.'s, customers. As to Tome's other tippees, he had a brokerage relationship with them and certainly expected to benefit financially through increased business from these clients in other transactions.
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐3071
YONG JUAN ZHAO, on behalf of her minor son,
Plaintiff‐Appellee,
v.
UNITED STATES OF AMERICA,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:17‐cv‐00454‐NJR‐GCS — Nancy J. Rosenstengel, Chief Judge.
____________________
ARGUED JUNE 5, 2020 — DECIDED JUNE 29, 2020
____________________
Before EASTERBROOK, HAMILTON, and SCUDDER, Circuit
Judges.
HAMILTON, Circuit Judge. This is an appeal from a Federal
Tort Claims Act judgment in favor of the plaintiff. When
plaintiff Yong Juan “Maggie” Zhao gave birth to her son “S.,”
he suffered an avoidable brachial plexus injury. The injury
has severely and permanently impaired the function of his
right arm. During her pregnancy and S.’s birth, Mrs. Zhao
2 No. 19‐3071
was attended by an obstetrician employed by a federally sup‐
ported grant clinic in southern Illinois. Because he is consid‐
ered an employee of the United States Public Health Service
under 42 U.S.C. § 233(g), Mrs. Zhao sued the United States for
medical malpractice under the Federal Tort Claims Act. The
court found after trial that the obstetrician had been negligent
and awarded Mrs. Zhao, on behalf of S., $8.3 million. That
sum included $2.6 million in lost earnings and $5.5 million in
noneconomic damages.
On appeal, the United States does not contest liability or
damages awarded for past and future medical expenses. The
government appeals only the portions of the damages award
that are inherently difficult to quantify. S. was not quite five
years old at the time of trial. The United States argues first that
the district court’s calculation of S.’s future lost earnings was
improperly speculative, given the uncertainties inherent in
projecting a five‐year‐old’s career opportunities. The question
may have been difficult to answer, but we find no reversible
error. The district court took a reasonable approach to esti‐
mate the lost earnings award based on data provided in ex‐
pert testimony. The United States also challenges the award
of noneconomic damages as arbitrary and excessive in com‐
parison to similar cases. The district court could have pro‐
vided a more detailed explanation of its comparative process,
but we can follow the court’s reasoning and find no reversible
error in this portion of the judgment. We affirm the judgment
of the district court.
I. Factual and Procedural Background
Because the United States’ liability for its physician‐em‐
ployee’s malpractice is not disputed on appeal, we summa‐
rize the facts pertaining to Mrs. Zhao’s pregnancy and S.’s
No. 19‐3071 3
birth. S. is Mr. and Mrs. Zhao’s fourth son. Mrs. Zhao’s three
deliveries prior to S. were uncomplicated, but her second son,
A., was macrosomic (above the average weight range), weigh‐
ing eleven pounds, twelve ounces at birth. During her labor
with A., Mrs. Zhao had to give birth in an unusual position,
with several doctors and nurses performing elaborate maneu‐
vers to deliver the baby safely.
Mrs. Zhao’s obstetrician for her pregnancy with S. was Dr.
Paul Cruz. He had not been involved in the prenatal care or
delivery of Mrs. Zhao’s first three children, but the record
shows that at her first prenatal visit, Dr. Cruz was aware of
A.’s high birth weight and of Mrs. Zhao’s desire for a Cesar‐
ean section. Mrs. Zhao testified that she described the maneu‐
vers necessary during A.’s delivery, but that neither Dr. Cruz
nor his staff asked follow‐up questions, either about A.’s de‐
livery or about any particulars of any of Mrs. Zhao’s prior
pregnancies and deliveries. Dr. Cruz did not request or re‐
view any of Mrs. Zhao’s medical records from other providers
or facilities. This information was of particular importance be‐
cause macrosomia tends to recur. And women who have had
prior difficult labors due to macrosomia are more likely to
have complications in subsequent deliveries.
Macrosomia is particularly dangerous because it greatly
increases the risk of shoulder dystocia, in which the baby’s
head has been delivered but the shoulders are stuck in the
birth canal. Shoulder dystocia is considered a medical emer‐
gency during delivery. It can lead to severe nerve damage and
even cut off the oxygen supply to the baby’s brain. The risk of
shoulder dystocia increases as the macrosomic baby’s weight
increases. That makes it critical for an obstetrician to screen
for the condition and to manage it skillfully.
4 No. 19‐3071
Dr. Cruz knew that Mrs. Zhao was at high risk for macro‐
somia and a complicated delivery, and the evidence con‐
vinced the court that he bungled the management of her preg‐
nancy and delivery. For example, he used a method of esti‐
mating fetal weight that he had learned from his department
chairperson during his residency. That method is not recog‐
nized in the medical profession and has never been published
or validated in any way. Using this method, Dr. Cruz esti‐
mated that S.’s birth weight would be eight pounds, one
ounce, plus or minus one pound. That estimate turned out to
be wrong by more than three pounds. Dr. Cruz did not use
any other, accepted methods of estimating birth weight, nor
did he order any ultrasounds, as is indicated by medical au‐
thorities for suspected macrosomia. Mrs. Zhao testified that
she repeatedly requested a Cesarean section, which would
prevent shoulder dystocia entirely. Dr. Cruz testified that he
did not recall—or chart—these conversations and that Mrs.
Zhao instead told him she wanted to avoid surgery so she
could return to work more quickly.
Mrs. Zhao had a prolonged and difficult labor with S. She
testified that she again requested a Cesarean section after be‐
coming too exhausted to continue, but Dr. Cruz told her it was
too late. Dr. Cruz, on the other hand, testified that he offered
her a Cesarean section after she began struggling to push. Dr.
Cruz and Mrs. Zhao decided to go ahead with vacuum extrac‐
tion instead. As a result of the vacuum extraction, S.’s head
was delivered, but his shoulders became stuck. Dr. Cruz and
the nursing staff performed a variety of maneuvers to attempt
to deliver S., but none of them worked. Dr. Cruz may have
used too much traction in his attempts to deliver S.’s shoul‐
ders, contributing to the boy’s injury. Ultimately, another ob‐
stetrician was able to deliver S. after nine minutes of dystocia.
No. 19‐3071 5
Even two or three minutes is cause for significant concern. S.
weighed eleven pounds, six ounces at birth. He was blue and
not breathing, and his heart was not beating. He spent several
weeks in a neonatal intensive care unit and has required sig‐
nificant follow‐up treatment ever since.
S.’s neurologist confirmed shortly after birth that he had
suffered a brachial plexus injury. In such injuries, the nerves
to the shoulder, arm, and hand are mechanically injured at the
point where they exit the spinal cord. In S.’s case, the nerves
of his right arm had been completely torn away from his spi‐
nal cord. They had also been stretched and scarred. Several
surgeries have restored a degree of function, but S.’s physi‐
cians expect those improvements to plateau in the near future.
Experts testified at trial that S.’s injuries are permanent
and will require further surgeries and ongoing occupational
and physical therapy for the rest of his life. He will be unable
to use his right arm and hand to engage normally in most of
the activities of daily living, including such mundane activi‐
ties as scratching his head, twisting doorknobs, and typing.
All activities requiring the coordination of both hands will be
difficult. S.’s right arm will always be visibly smaller, shorter,
and weaker than his left, and these discrepancies will only
grow as S. does. S. is already aware of his disability, and there
is evidence that he experiences significant emotional distress
in addition to his physical limitations.
Mrs. Zhao filed this medical malpractice suit after ex‐
hausting her administrative remedies by submitting an ad‐
ministrative tort claim to the United States Department of
Health and Human Services. See Zurba v. United States, 318
F.3d 736, 738 (7th Cir. 2003) (describing administrative ex‐
haustion requirement of 28 U.S.C. § 2675). The district court’s
6 No. 19‐3071
jurisdiction was proper under the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b)(1) and 2674.
The district court properly applied Illinois law under 28
U.S.C. § 1346(b)(1). United States v. Muniz, 374 U.S. 150, 153
(1963). The Zhaos are residents of Marion, Illinois, and the
clinic and hospital where Mrs. Zhao received treatment were
both in southern Illinois. The court found that Dr. Cruz had
deviated from the standard of care in numerous respects both
during her pregnancy and during labor and delivery. The
court awarded Mrs. Zhao, on behalf of S., approximately $8.3
million in damages: $64,967.77 for past medical expenses,
$80,000 for future medical expenses, $2,653,000 in lost earn‐
ings, $1,500,000 for the permanent disfigurement of his right
arm, $2,000,000 for the deprivation of a normal life, and
$2,000,000 for pain, suffering, and emotional distress.
The United States appealed, and we have jurisdiction un‐
der 28 U.S.C. § 1291. The government challenges the award of
$2,653,000 in lost earnings and the aggregate of $5.5 million in
noneconomic damages (comprising the awards of $1.5 million
for disfigurement, $2 million for the deprivation of a normal
life, and $2 million for pain, suffering, and emotional dis‐
tress).
II. Analysis
A. Standard of Review
Our review of damage awards under the Federal Tort
Claims Act is deferential. “We review a district court’s dam‐
ages methodology de novo, but we review the application of
that methodology for abuse of discretion.” Clanton v. United
States, 943 F.3d 319, 325 (7th Cir. 2019), citing Kreg Therapeu‐
tics, Inc. v. VitalGo, Inc., 919 F.3d 405, 419 (7th Cir. 2019); see
No. 19‐3071 7
also Doe v. United States, 976 F.2d 1071, 1083 (7th Cir. 1992)
(“We cannot overturn the district court’s damage award un‐
less its factual basis is clearly erroneous. Our task is limited to
inquiring whether the trial court abused its discretion; it is not
to consider whether we personally would have made the
same award.”) (citations omitted).
The government has not directly challenged the district
court’s choice of method. The government argues in effect
that any method of calculating lost earnings damages would
be improper because S.’s future career path is inherently un‐
certain. That argument challenges the district court’s choice
of method (insofar as it rejects the application of any method),
but the argument is contrary to Illinois law, which allows such
awards of lost future earnings if the permanence of the injury
affecting the plaintiff’s future earning capacity be proven to a
reasonable certainty. Brown v. Chicago & N.W. Transp. Co., 516
N.E.2d 320, 328–29 (Ill. App. 1987); accord, Doering v. Janssen,
394 N.E.2d 721, 723 (Ill. App. 1979). The government also
more narrowly challenges the specific figures that formed the
basis of the district court’s lost earnings calculation. On this
challenge, we review the district court’s findings of fact un‐
derlying the damage awards for clear error, and we review
the court’s application of its chosen method for abuse of dis‐
cretion.
B. Lost Earnings
In estimating future lost earnings for S. as a result of his
injury, the district court had to engage in the difficult but un‐
avoidable task of predicting a five‐year‐old’s future. After
hearing testimony from both parties’ experts, the district
judge selected two salary figures from among those offered
by the experts, reasonably representing S.’s earning potential
8 No. 19‐3071
with and without his injury. Using those figures, the court
awarded him the difference, multiplied by the number of
years he is statistically expected to be in the workforce. The
district court did not abuse its discretion in choosing the fig‐
ures it did.
Mrs. Zhao’s vocational expert, David Gibson, provided a
number of estimates of S.’s lost earning capacity based on dif‐
ferent levels of education he might attain. The district court
focused most closely on the figures Gibson provided assum‐
ing that S. would attain a high school diploma. Without the
injury, Gibson estimated S.’s average annual earnings at
$40,761; with the injury, $35,839. Gibson concluded that S.’s
injury would cause him to lose $916,793 in lifetime earning
capacity with a high school diploma, $1,043,076 with an asso‐
ciate’s degree, and $1,581,779 with a bachelor of arts or science
degree. Note that Gibson’s estimate of lost earnings from the
physical injury rose with higher levels of education.
The government’s vocational expert, Susan Entenberg,
took a different approach. Taking into account S.’s normal
cognitive functioning, she opined that he would likely be able
to perform many sedentary, light, or knowledge‐oriented jobs
without any impact on his earning capacity. Entenberg did
concede that certain occupations requiring manual labor or
physical strength and dexterity in both arms would be largely
unavailable to S. Assuming that S. obtains only a high school
diploma, she testified that without the injury, he could in the‐
ory have made around $100,000 per year in a skilled union
operating or engineering trade, but with the injury, he would
likely be limited to unskilled occupations paying $20,000–
30,000 annually, such as a cashier or payroll clerk. Nonethe‐
No. 19‐3071 9
less, Entenberg concluded that given the numerous non‐man‐
ual jobs available in the labor market, S.’s overall earning ca‐
pacity would not be affected by the permanent injury to his
shoulder and arm.
The district court found by a preponderance of the evi‐
dence that S.’s injury would affect his earning capacity. The
court then had to find a way of estimating those lost earnings.
The court chose to take the difference between the two num‐
bers Entenberg provided assuming that S. does not pursue
post‐secondary education—$100,000 for the skilled trade jobs
that are now unavailable to him, and $30,000 for the unskilled
jobs that remain available—and multiply it by the number of
years Gibson estimated that S. would be in the workforce,
37.9. (Entenberg did not provide an estimate of S.’s worklife
expectancy.) $70,000 per year, multiplied by 37.9 years, is
$2,653,000, the figure that the district court awarded in dam‐
ages for lost earning capacity.
The government argues on appeal that the selection of any
two specific numbers representing S.’s earning potential with
and without the injury is “inherently arbitrary,” saying that
the district court “could just as easily have selected any of the
multitude of other possible jobs and arrived at a radically dif‐
ferent damages figure.” The point only highlights the prob‐
lem of deciding once and for all, when the victim of the neg‐
ligence is only five years old, on a number to provide fair com‐
pensation. That difficulty does not justify an award of zero,
which the government proposed to the district court. Based
on the expert testimony offered by the parties, the district
judge chose two common job categories that S. reasonably
might be expected to attain assuming an average level of ed‐
ucation. The judge used salary figures for those job categories
10 No. 19‐3071
offered by the experts themselves, rooted in statistical evi‐
dence about typical wages for those types of jobs in the na‐
tional economy.
In so doing, the district court properly applied Illinois law.
Like any other category of actual damages, lost earnings dam‐
ages require “reasonably certain proof.” Brown, 516 N.E.2d at
327–28. Illinois law requires primarily that the permanence of
the injury itself be proved to reasonable certainty, but it recog‐
nizes the inherent but unavoidable uncertainty in any calcu‐
lation of lost earnings, especially for such a young victim who
suffered injury at birth. See id. at 328–29; accord Doering, 394
N.E.2d at 723. The district court’s finding that S.’s injury
would persist throughout his life, a question of fact, was well
supported by extensive expert medical testimony. And the
district court relied on reasonable figures to estimate the im‐
pact of that permanent injury on his earnings. The govern‐
ment has not offered, and we cannot think of, a more reliable
and precise way to estimate the future earnings of a five‐year‐
old. And on this record, with substantial expert testimony ad‐
dressing the problem, the alternative would itself have been
an abuse of discretion—finding that S.’s injury is permanent
and would reduce his earning capacity, but then refusing to
award any damages whatsoever because the district court
could not predict the future with greater certainty.
C. Noneconomic Damages
The district court awarded Mrs. Zhao, on behalf of S., sev‐
eral different types of noneconomic damages: $1.5 million for
disfigurement, $2 million for the deprivation of a normal life,
and $2 million for pain, suffering, and emotional distress. The
government challenges these portions of the award, arguing
that they are out of proportion to the comparator cases the
No. 19‐3071 11
court considered and to additional comparator cases the court
did not consider. To be sure, the district court’s reasoning
could have been more precisely articulated. Even so, we do
not think the award was an abuse of discretion. Category by
category, it was comparable to similar cases.
The district court structured its analysis by first summa‐
rizing the factual basis for granting damages in each category.
The court described S.’s disfigurement, the ways in which he
has been and will be deprived of a normal life, and the evi‐
dence showing his present and anticipated future pain, suf‐
fering, and emotional distress. The court referred to expert
testimony, record evidence, testimony offered by the Zhaos,
and its own observations of S.’s arm and demeanor. We find
no clear error in the district court’s careful findings of fact
supporting each category of damage award.
To our astonishment, the government argued before the
district court that S. was not disfigured, would not need fur‐
ther medical care, and suffered no pain or emotional distress
from his injury. The government even argued that S. would
not experience the loss of a normal life because his injury oc‐
curred at birth so that he would know no alternative. On our
review of the record, the government’s argument is unrealis‐
tic and entirely unsupported, further increasing our confi‐
dence that the district court did not err. The record shows that
even at his young age, S. already understands to some degree
what his life might have been like if he had not been injured:
Mrs. Zhao testified that on several occasions, S. has become
distressed when he sees other children engaging in physical
activities that he cannot join. He has told his mother that he
wants an arm like his brother’s.
12 No. 19‐3071
Both juries and judges face challenges in putting dollar fig‐
ures on categories of noneconomic—but real—damages. We
have encouraged district judges awarding noneconomic dam‐
ages under the Federal Tort Claims Act to compare the cases
they are deciding to other similar cases. Arpin v. United States,
521 F.3d 769, 776 (7th Cir. 2008). The district court summa‐
rized the comparator cases it considered. The court correctly
declined to use as comparators cases that were resolved by
agreed settlements. A settlement is a compromise in which
both sides reduce the risk that the final outcome will not be in
their favor. Settlements cannot be usefully compared to cases
tried to verdict, at least without factoring in the risk that the
plaintiff in the comparator case would have lost entirely,
which is likely to be a difficult estimate based on publicly
available information. See, e.g., E.E.O.C. v. Hiram Walker &
Sons, Inc., 768 F.2d 884, 889 (7th Cir. 1985) (“The essence of
settlement is compromise. Each side gains the benefit of im‐
mediate resolution of the litigation and some measure of vin‐
dication for its position while forgoing the opportunity to
achieve an unmitigated victory.”). The district court also did
not rely heavily on verdicts that did not provide much detail
on the nature and implications of the plaintiff’s brachial
plexus injury.
The district court focused its analysis on Skonieczny v.
Gardner, No. 98L4578, 2001 WL 36512978 (Ill. Cir. May 29,
2001), describing the case as “remarkably similar” to this one.
Like S. in this case, the Skonieczny plaintiff had an older sibling
who had a difficult delivery; the doctor did not take proper
measures to estimate the baby’s size; the doctor unwisely pur‐
sued a vacuum extraction during labor; and the plaintiff suf‐
fered four nerve root avulsions leading to a horrific brachial
No. 19‐3071 13
plexus injury. (An avulsion is where the nerve root is com‐
pletely torn away from the spine.) The jury in Skonieczny
awarded the plaintiff $13.298 million, including approxi‐
mately $225,000 for lost future earnings, $4,000,000 for disfig‐
urement, $5,000,000 for disability, and $3,000,000 for pain and
suffering.
The government argues on appeal that Skonieczny is so dis‐
tinguishable as to be irrelevant: that plaintiff had four nerve
root avulsions, rather than S.’s one, and his resulting brachial
plexus injury was considered “severe” rather than “moder‐
ate.” But we see no issue with using Skonieczny as the primary
comparator given that the damages the district court awarded
to S. were proportionately reduced. S. received $1.5 million
for disfigurement compared to $4 million in Skonieczny; $2
million for the deprivation of a normal life compared to $5
million for disability; and $2 million rather than $3 million for
pain, suffering, and emotional distress. For S.’s injury, which
is similar but somewhat less severe, these adjustments seem
reasonable, particularly given our deferential review and the
difficulty of finding exact dollar amounts for such aspects of
the injury.
The district court also considered a number of other re‐
ported cases with brachial plexus injuries, with verdicts rang‐
ing from $1.28 million to $61 million. (The district court rea‐
sonably declined to view the latter case as truly comparable
because that plaintiff also suffered permanent cognitive im‐
pairment as a result of the dystocia.) Many of the cases with
lower total awards did not provide enough information about
the nature of the injury and its effects for the district court
here to draw much guidance from the other courts’ conclu‐
sions. We do not view a $5.5 million noneconomic damages
14 No. 19‐3071
award as obviously out of line with the numerous compara‐
tors the district court considered. Nor has the government put
forth other cases that are more relevant comparators.
We have observed that “when the trier of fact is a judge,
[she] should be required as part of [her] Rule 52(a) obligation
to set forth in [her] opinion the damages awards that [she]
considered comparable.” Jutzi‐Johnson v. United States, 263
F.3d 753, 759 (7th Cir. 2001). The district court did that here.
The total damages award is supported by the record and in
line with the court’s findings of fact. We have explained that
“the judge must indicate the reasoning process that connects
the evidence to the conclusion.” Id. at 758; see also Arpin, 521
F.3d at 776. That process could have been explained more
fully here, but we find no abuse of discretion or error. The dis‐
trict judge laid out the information that provided the founda‐
tion for her award, and we can follow her reasoning suffi‐
ciently to say the damage award was within reasonable
bounds.
As we explained above, our standard of review in Federal
Tort Claims Act damages appeals is deferential. Applying
such deferential review, we have upheld some seemingly low
damages awards against the government. See, e.g., Davis v.
United States, 375 F.3d 590 (7th Cir. 2004); Doe v. United States,
976 F.2d 1071 (7th Cir. 1992). In this case, it is clear that S. will
suffer lifelong effects from this serious and entirely avoidable
injury. The award here may have been toward the upper
bounds of a reasonable award, but our job on appeal is not to
decide the amount we would award if we had presided over
the trial. The district court reached a reasonable decision
given the unavoidable difficulty of deciding at one moment
No. 19‐3071 15
in time an amount to provide fair compensation over a life‐
time for a now‐five‐year‐old boy’s permanent and life‐alter‐
ing birth injury. The government’s arguments that he should
receive no compensation beyond medical expenses were dis‐
appointing and not persuasive.
The judgment of the district court is AFFIRMED.
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NOT FOR PUBLICATION FILED
DEC 15 2017
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW R. RUTH, No. 16-35837
Petitioner-Appellant, D.C. No. 2:15-cv-00533-TSZ
v.
MEMORANDUM*
PATRICK R. GLEBE,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Submitted December 4, 2017**
Seattle, Washington
Before: TALLMAN and WATFORD, Circuit Judges, and BOULWARE, ***
District Judge.
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Richard F. Boulware II, United States District Judge for the
District of Nevada, sitting by designation.
After a jury trial, Matthew Ruth (“Petitioner”) was convicted of two counts of
first-degree assault under Washington state law on December 9, 2004, with a special
verdict finding that he used a deadly weapon. Petitioner filed a timely federal habeas
petition on April 3, 2015. The magistrate judge issued a Report and
Recommendation denying the petition, which was adopted by the district court. For
the reasons stated below, we affirm.
1. Petitioner argues that the state prosecutor made comments in closing
argument that implied that Petitioner had a legal duty to retreat when faced with a
threat, undermining his self-defense theory. He further argues in his federal habeas
petition that the Washington Court of Appeals erred in its application of clearly
established federal law to his claim. A federal court may not grant a state prisoner’s
habeas application unless the relevant state-court decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
Petitioner has not met the high burden of proving that the state court’s
determination was unreasonable under the federal habeas standard. Harrington v.
Richter, 562 U.S. 86, 101 (2011); Darden v. Wainwright, 477 U.S. 168, 181 (1986);
Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Petitioner argues that the state
court erred in its application of federal law by relying upon an improper test that
merely “compar[ed] the quantity of proper argument to the quantity of improper
2
argument in the prosecutor’s summation alone.” However, the state court did not
base its decision on a strict comparison of the quantum of improper versus proper
argument. Rather, the state court considered the import of the prosecutor’s alleged
improper statements in the “context” of the overall argument made by the
prosecutor, which is an appropriate consideration under Darden. 477 U.S. at 179.
The state court’s analysis of the prosecutor’s statements did not unreasonably apply
established federal law by relying upon an improper test.
Additionally, we do not find that the state court unreasonably applied federal
law when it determined that the prosecutor’s improper statements were not
prejudicial since “the main focus of the prosecutor’s argument was that Ruth did not
have reasonable grounds to believe that he was being attacked.” It was not
objectively unreasonable for the state court to conclude that, in light of all of the
circumstances of the case, Petitioner failed to demonstrate that the prosecutor’s
statement had a substantial impact on the jury’s verdict. “Isolated passages of a
prosecutor’s argument, billed in advance to the jury as a matter of opinion not of
evidence” rarely have a significant impact on jury deliberations. Donnelly v.
DeChristoforo, 416 U.S. 637, 646 (1974). We therefore find it was not contrary to
or an unreasonable application of clearly established law for the state court to find
that any misleading effect of the prosecutor’s comment was outweighed by the
primary arguments of the prosecutor’s closing, the trial court’s direction that the jury
3
would make their own determination, and the trial court’s instruction that the
attorneys’ arguments are not evidence.
2. The state court did not violate clearly established law when it denied
Petitioner’s ineffective assistance of counsel claim based on the failure of
Petitioner’s trial attorney to request a lesser-included offense instruction for assault
in the second degree. Under clearly established law, an ineffective assistance of
counsel claim requires (1) proof that trial counsel’s performance “fell below an
objective standard of reasonableness,” and (2) that prejudice resulted from this
deficiency due to a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). Importantly, when considering an
ineffective assistance of counsel claim on federal habeas review, “[t]he pivotal
question is whether the state court’s application of the Strickland standard was
unreasonable.” Harrington, 562 U.S. at 101.
Petitioner contends that because he may have been entitled to a second-degree
assault instruction and because such an instruction may have led to a reduced
sentence, it was objectively unreasonable for trial counsel not to request it. As
Petitioner recognizes, however, a defense attorney may make a “strategic decision”
not to request a lesser-included offense instruction. See Matylinsky v. Budge, 577
F.3d 1083, 1092 (9th Cir. 2009); see also Butcher v. Marquez, 758 F.2d 373, 376
4
(9th Cir. 1985) (“Under the Strickland test, counsel’s strategic choice to forgo [a
lesser-included] instruction for voluntary manslaughter was reasonable because
counsel had good cause to believe that further efforts to obtain such an instruction
would harm [the defendant’s] case.”). Indeed, we have recognized that it can “be
reasonable for a defense attorney to opt for an ‘all-or-nothing’ strategy, forcing the
jury to choose between convicting on a severe offense and acquitting the defendant
altogether.” Crace v. Herzog, 798 F.3d 840, 852 (9th Cir. 2015). And Petitioner
bears the burden of demonstrating that his attorney’s decision not to request the
instruction was not a “reasonable strategic decision.” Matylinksy, 577 U.S. at 1092.
Petitioner has not met his burden of demonstrating that his attorney’s decision not
to request the lesser-included instruction was not a strategic choice. Merely arguing,
as Petitioner does, that it would have been a sound strategic decision to request the
lesser-included instruction does not establish that it was unreasonable for
Petitioner’s trial attorney not to request it. We thus find it was not contrary to or an
unreasonable application of clearly established law for the state court to find that
Petitioner’s trial attorney’s decision not to request a lesser-included instruction was
a matter of trial strategy.
3. The state court also did not violate clearly established law when it denied
Petitioner’s other ineffective assistance of counsel claim because it found that
Petitioner was not prejudiced by his trial counsel requesting a self-defense
5
instruction that has been disapproved of by the Washington Supreme Court.
Although the jury instruction ultimately used at trial referenced the higher standard
of “great bodily harm,” which is defined in the first-degree assault instruction,
Petitioner was not prejudiced. Petitioner’s theory of defense was actually consistent
with, and not undermined by, the higher standard of great bodily harm. Petitioner
argued that he believed that the two victims were coming to rape his girlfriend and
kill him and his girlfriend. If the jury believed his testimony, they would have found
it reasonable for him to believe that he or another was in actual danger of great bodily
harm. As Petitioner’s theory of defense would not have been negatively impacted
by the instruction given, he cannot demonstrate a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. We thus find that it was not contrary to or
an unreasonable application of clearly established law for the state court to hold that
Petitioner was not prejudiced by this jury instruction.
4. The state court did not violate clearly established law under the Sixth
Amendment when it found that there was no constitutional error as a result of
Petitioner’s trial counsel not being present when the trial court responded to a jury
question. Under clearly established Supreme Court precedent, a trial is
presumptively unfair if the defendant was denied counsel at “a critical stage.” United
States v. Cronic, 466 U.S. 648, 659 (1984). The Supreme Court has generally
6
defined a critical stage as “a step of a criminal proceeding, such as arraignment, that
held significant consequences for the accused.” Bell v. Cone, 535 U.S. 685, 696
(2002). The state court’s failure to treat the jury’s request for evidence as a critical
stage was not an unreasonable application of or contrary to clearly established law
because no Supreme Court case has yet held that the formulation of a court’s
response to a question from the jury is necessarily a critical stage of a trial.
Moreover, even assuming that the formulation of a response to a jury’s
question can be a critical stage where the formulation would have “significant
consequences for the accused,” the facts of this case do not meet that standard. Id.
The jury was not requesting further instruction on a substantive legal issue or
evidentiary interpretation that defense counsel might have contributed to; rather, the
jury was simply requesting an opportunity to view certain transcripts. As these
transcripts had never been entered into evidence, the trial judge gave the jury the
only response that could have been provided under the circumstances. This
interaction did not hold “significant consequences” for the Petitioner and he has not
identified any such “significant consequences” for his defense at trial. Id. We
therefore hold that it was not contrary to or an unreasonable application of clearly
established law for the state court to find that there was no constitutional error
created by the absence of Petitioner’s trial counsel during this interaction.
5. The Court declines to address the uncertified issue briefed by Petitioner.
7
AFFIRMED.
8
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537 U.S. 1042
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.v.CAMPBELL ET UX.
No. 01-1289.
Supreme Court of United States.
December 2, 2002.
1
CERTIORARI TO THE SUPREME COURT OF UTAH.
2
Sup. Ct. Utah. [Certiorari granted, 535 U. S. 1111.] Motion of respondents to substitute special administrator and personal representative, and to recaption granted.
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193 F.Supp. 275 (1960)
Henry E. DRUM et al., Plaintiffs,
v.
UNITED STATES of America and Interstate Commerce Commission, Defendants.
Civ. A. No. 8708.
United States District Court W. D. Oklahoma.
August 15, 1960.
*276 Hanson & Peterson, Oklahoma City, Okl., for plaintiffs.
Charles R. Iden, Akron, Ohio, for intervener Weather-Seal, Inc.
Paul W. Cress, U. S. Atty., Oklahoma City, Okl.; Robert A. Bicks and John J. Voortman, Washington, D. C., for defendant United States.
Robert W. Ginnane, Carroll T. Prince, Jr., and B. Franklin Taylor, Jr., Washington, D. C., for defendant Interstate Commerce Commission.
Roland Rice, Washington, D. C., William T. Brunson, Oklahoma City, Okl., for intervener Regular Common Carrier Conference of the American Trucking Ass'ns, Inc.
Before MURRAH, Circuit Judge, CHANDLER, Chief Judge, and RIZLEY, District Judge.
CHANDLER, Chief Judge.
Plaintiffs instituted this action under 28 U.S.C. §§ 1336, 1398 and Sections 2321 through 2325 to vacate, set aside and annul certain orders of the Interstate Commerce Commission entered in a proceeding initiated by the Commission on its own motion under Section 204(c) of the Interstate Commerce Act (49 U. S.C.A. § 304(c)), and to enjoin the Commission from enforcing or attempting to enforce said orders.
The Commission by order of August 28, 1957, began an investigation under said Section 204(c) of the Act to determine whether the individual plaintiffs, Marion W. Daves, Henry E. Drum, N. C. Newman, A. D. Woodard, George F. Daves, Oscar Daves, Archie Norris, Eugene Wiggins, Charles W. McGee, Todd Shinn and William M. Martin,[1] were engaged in transportation of property in interstate or foreign commerce for compensation as common or contract carriers by motor vehicle, in violation of Part II of the Interstate Commerce Act, and whether the plaintiff Oklahoma Furniture Manufacturing Co. had participated in any such violation. In its report the Commission found that the individual plaintiffs had been and were engaged in transportation of property in interstate commerce for compensation as contract carriers by motor vehicle without appropriate authority in violation of Section 209(a) (1) of the Interstate Commerce Act (49 U.S.C.A. § 309(a) (1)) and entered an order requiring said plaintiffs to cease and desist from all operations found in the report to be unlawful. A petition for reconsideration and exception to said report and order were filed by plaintiffs and denied by the Commission by order of December 29, 1959.
The Regular Common Carrier Conference of American Trucking Associations, Inc. has intervened in this action *277 in support of defendants' position and Weather-Seal, Inc. has intervened in support of plaintiffs' position.
Oklahoma Furniture Manufacturing Co. (hereinafter referred to as the Company) is engaged in the manufacture of furniture at Guthrie, Oklahoma, which it sells to retail furniture dealers throughout the United States. The Company owns six tractors and seventeen trailers, and in addition to this equipment leases a tractor from each of the individual plaintiffs (hereinafter referred to as owner-operators) under separate lease agreements. All this equipment is used in the interstate transportation of the Company's furniture to retail dealers and in the back-haul of raw materials to the Company. Prior to 1952 the Company carried on all its transportation of goods in company-owned equipment operated by employees of the Company, but upon discovering that the drivers were defrauding it by improper use of credit cards, the Company changed to a system of operation whereby each driver owned and maintained his own tractor, which was leased to the company with the driver being paid on a mileage basis. To effectuate this method of operation, the Company entered into a lease agreement with each driver. These initial leases were subsequently replaced by others which were, in turn, replaced by the present leases with which we are here concerned.
The leases provide in substance as follows: (1) the Company shall pay the owner-operator 10¢ a mile for hauling single-axle trailers and 11¢ a mile for hauling tandem-axle trailers, plus an additional 3¢ a mile for back-haul of the Company's raw materials, (2) payments under the agreement shall be made weekly, (3) motor vehicles covered by the agreement shall be operated by an employee of the Company who shall be properly qualified and physically fit in accordance with state and federal regulations, (4) the owner-operator shall pay all operating costs arising from operation of said equipment (gasoline, oil, grease and parts) and shall pay cost of license plates, (5) the Company shall keep and maintain said equipment in first-class operating condition and in compliance with all safety rules and regulations of state and federal regulatory bodies, (6) if owner-operator fails to pay operating cost of equipment, the Company may cancel the agreement or at its option pay the necessary operating costs and charge same to owner-operator's account with the Company, (7) the Company shall have sole control, right of direction, and use of the leased equipment, all property transported by the leased vehicles shall belong to the Company and the Company will not sublease the equipment to any other person, firm or corporation, (8) the Company shall not be liable for wear, tear and depreciation nor for any damage caused to the leased equipment by accident, theft, fire or any other hazard or casualty, (9) the owner-operator shall not be responsible for loss to company equipment, property and cargo, (10) the Company will have the name of the owner-operator endorsed as an additional assured upon its policies of property damage and public liability insurance covering the operation of motor vehicles, (11) either party may cancel the lease upon giving 30 days' written notice to the other party, (12) the agreement shall remain in full force and effect for one year from date of execution and shall be automatically renewed for further periods of one year unless cancelled in accordance with provisions of the agreement, or terminated by operation of law.
The Company also entered into a union contract as employer of its drivers. The contract covers both drivers of company-owned vehicles and the owner-operators who usually drive their own tractors and who are also treated by the Company as employees. Although all the drivers do not belong to the union, the terms of the contract apply equally to non-union employees. This contract provides, in pertinent part, as follows: (1) the Company may discharge any employee for cause, (2) the owner-operators shall be paid at the rate of 4.5 cents a mile for driving, 0.25 cents a mile for living expenses, and *278 0.25 cents a mile for labor in the maintenance of the truck, or a total of 5 cents a mile, and shall be paid 6 cents a mile for back-hauls of raw materials, (3) drivers of company-owned tractors shall receive a basic salary of $50 a week plus 2 cents a mile for driving, (4) owner-operators having driven 75,000 miles during a year in which the contract is in effect shall be entitled to vacation pay computed upon the rate of pay for driving and the average weekly mileage in the preceding year, (5) owner-operators shall maintain their trucks in good running condition at all times, (6) owner-operators shall pay their own living expenses while on the road, (7) the provision of the union contract which guarantees employees 6 hours work or pay if they report for work at their usual or regular time shall not apply to owner-operators.
The record made before the Commission shows that the operations of the Company and the owner-operators are in substance carried on in accordance with the provisions of the lease agreements and the union contract, with one exception. The lease agreements provide that the Company shall maintain the tractors of the owner-operators and the union contract provides that the owner-operators shall maintain them. The testimony in the record supports the Commission's finding that the owner-operators in fact maintain their vehicles.
The record also reveals the following: The owner-operators are not authorized by the Interstate Commerce Commission to engage in the transportation of property either as contract carriers or common carriers by motor vehicle in interstate commerce. The Company uses the 6 tractors which it owns chiefly for short hauls and these are usually driven by the salaried company drivers. The tractors leased by the Company are utilized chiefly for long hauls and are usually operated by the owner-operators, each driving his own tractor. It is the practice of the Company to assign the same driver to the same equipment, regardless of whether it is company-owned or leased. However, when necessity or convenience make it more feasible to do so, drivers who usually drive company-owned tractors are assigned to leased tractors and owner-operators to company-owned tractors. All trailers used in the Company's operations are owned by it. A supervisor employed by the Company oversees all drivers, assigns trips and checks to see that all equipment is properly maintained and repaired. Detailed routing instructions are issued to all drivers and compliance therewith is insured by manner of loading, e. g., last goods to come off are loaded first and the first to come off are loaded last. Prior to departure drivers are handed a truck bill manifest which differs from a bill of lading in that the drivers are not required to sign a receipt for the freight they transport. Each owner-operator receives two weekly paychecks, one for rental of his tractor and the other for his service as a driver. The Company deducts from the paychecks of the owner-operators social security and withholding taxes, pays the employer's share of social security and provides workmen's compensation benefits for them. The Company maintains on file drivers' logs, physicians' certificates and vehicle inspection reports. Both company-owned tractors and leased tractors are garaged at the homes of their respective drivers. The Company has the right to hire and fire drivers independently of the lease agreement.
The primary issue presented is whether the interstate transportation operations herein involved constitute private carriage conducted by the Company, or contract carriage on the part of the owner-operators. As the court in Lamb v. Interstate Commerce Commission, 10 Cir., 259 F.2d 358, 360, put it, "Simply stated, it is who was transporting the goods in question," that is, whose operations in interstate transportation were these, those of the Company or those of the owner-operators?
The pertinent statutes involved are as follows: 49 U.S.C.A. § 303(a) (15) provides:
"The term `contract carrier by motor vehicle' means any person which engages in transportation by motor *279 vehicle of passengers or property in interstate or foreign commerce, for compensation (other than transportation referred to in paragraph (14) and the exception therein), under continuing contracts with one person or a limited number of persons either (a) for the furnishing of transportation services through the assignment of motor vehicles for a continuing period of time to the exclusive use of each person served or (b) for the furnishing of transportation services designed to meet the distinct need of each individual customer."
49 U.S.C.A. § 303(a) (16) provides:
"The term `motor carrier' includes both a common carrier by motor vehicle and a contract carrier by motor vehicle."
49 U.S.C.A. § 303(a) (17) provides:
"The term `private carrier of property by motor vehicle' means any person not included in the terms `common carrier by motor vehicle' or `contract carrier by motor vehicle', who or which transports in interstate or foreign commerce by motor vehicle property of which such person is the owner, lessee, or bailee when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise."
49 U.S.C.A. § 304(c) provides:
"Upon complaint in writing to the Commission by any person, State board, organization, or body politic, or upon its own initiative without complaint, the Commission may investigate whether any motor carrier or broker has failed to comply with any provision of this part, or with any requirement established pursuant thereto. If the Commission, after notice and hearing, finds upon any such investigation that the motor carrier or broker has failed to comply with any such provision or requirement, the Commission shall issue an appropriate order to compel the carrier or broker to comply therewith. Whenever the Commission is of opinion that any complaint does not state reasonable grounds for investigation and action on its part, it may dismiss such complaint."
49 U.S.C.A. § 309(a) (1) provides in part:
"Except as otherwise provided in this section and in section 310a of this title, no person shall engage in the business of a contract carrier by motor vehicle in interstate or foreign commerce on any public highway or within any reservation under the exclusive jurisdiction of the United States unless there is in force with respect to such carrier a permit issued by the Commission, authorizing such person to engage in such business * * *"
49 U.S.C.A. § 42 provides:
"In any proceeding for the enforcement of the provisions of the statutes relating to interstate commerce, whether such proceeding be instituted before the Interstate Commerce Commission or be begun originally in any district court of the United States, it shall be lawful to include as parties, in addition to the carrier, all persons interested in or affected by the rate, regulation, or practice under consideration, and inquiries, investigations, orders, and decrees may be made with reference to and against such additional parties in the same manner, to the same extent, and subject to the same provisions as are or shall be authorized by law with respect to carriers."
The parties appear to be in some slight disagreement as to the scope of judicial review of an order of the Commission. The defendants contend that "The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body." Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 54 S.Ct. 692, 694, 78 L.Ed. 1260. They further contend that the court can only *280 determine whether or not the Commission's findings are supported by substantial evidence. Riss & Co., Inc. v. United States, D.C.W.D.Mo., 100 F.Supp. 468, affirmed 342 U.S. 937, 72 S.Ct. 559, 96 L.Ed. 697, rehearing denied 343 U.S. 937, 72 S.Ct. 769, 96 L.Ed. 1344. Plaintiffs, on the other hand, state that a reviewing court when passing on the validity of a Commission order should ascertain whether it is supported by substantial evidence on the record considered as a whole. Coyle Lines v. United States, D. C.E.D.La., 115 F.Supp. 272. While this court recognizes the distinction emphasized in the latter case, it nevertheless feels that even under the rule as set forth by defendants a reviewing court will consider the whole record in determining whether there is substantial evidence to support such an order.
Plaintiffs allege that the Commission was without jurisdiction to initiate its investigation into the operations of plaintiffs for the reason that it proceeded under 49 U.S.C.A. § 304(c) which only authorizes it to investigate motor carriers and brokers and that since the term "motor carrier" includes only common carriers and contract carriers, the Commission had no authority to investigate the operations of the Company because it is a shipper and a private carrier. In view of the fact that 49 U.S.C.A. § 303(c), 49 U.S.C.A. § 306(a) (1) and 49 U.S.C.A. § 309(a) (1) prohibit any person from engaging in operations as a common carrier or contract carrier without an appropriate certificate or permit issued by the Commission and that 49 U.S.C.A. § 304(c) authorizes the Commission to investigate whether any motor carrier has failed to comply with any provision of Part II of the Act, and after notice and hearing, to issue any appropriate order to compel compliance, it necessarily follows that the Commission has the right, power and duty to inquire into operations such as those involved here to ascertain whether persons are in fact carrying on common carrier or contract carrier operations in violation of the Act. It is therefore evident that the Commission had jurisdiction as regards the owner-operator plaintiffs and 49 U.S. C.A. § 42 granted the Commission authority to join the Company.
In reaching its decision on the primary issue herein involved, the Commission utilized two tests: (1) Did anyone other than the Company have any right to control, direct and dominate the transportation involved, and (2) Were the owner-operators in substance engaged in the business of interstate or foreign transportation of property on the public highways for hire. Both tests have been approved by the courts. See Interstate Commerce Commission v. F & F Truck Leasing Co., D.C.Minn., 78 F. Supp. 13, 20, where the court stated:
"In order for the operations to be those of the shipper as a private carrier there must be a clear and unequivocal showing that the shipper exercises control and responsibility over the operations of the vehicle, such as would be exercised by it if it were the owner of the vehicle."
See also Interstate Commerce Commission v. Gannoe, D.C.W.D.Pa., 100 F.Supp. 790; Motor Haulage Co. v. United States, D.C.E.D.N.Y., 70 F.Supp. 17, affirmed 331 U.S. 784, 67 S.Ct. 1205, 91 L.Ed. 1815; United States v. La Tuff Transfer Service, D.C.Minn., 95 F.Supp. 375. In regard to the second test mentioned, see Georgia Truck System Inc. v. Interstate Commerce Commission, 5 Cir., 123 F.2d 210; Lamb v. Interstate Commerce Commission, supra; A. W. Stickle Co. v. Interstate Commerce Commission, 10 Cir., 128 F.2d 155, certiorari denied 317 U.S. 650, 63 S.Ct. 46, 87 L.Ed. 523.
In addition to these tests the Commission also relied upon a rebuttable presumption (which defendants state is essentially an inference) set forth by the Commission in H. B. Church Truck Service Co., Common Carrier Application, 27 M.C.C. 191, as follows:
"* * * in cases in which the question of the status created by a lease of equipment with drivers by a carrier to a shipper is presented, in *281 the absence of a showing to the contrary, the presumption arises that the transportation is performed by the carrier for compensation, in other words is for-hire transportation and as such is subject to regulation."
This "presumption" has been indirectly recognized by the courts. See Motor Haulage Co. v. United States, supra, and Interstate Commerce Commission v. Gannoe, supra. It will be noted, however, that in the above cited Church decision the Commission stated that the presumption arises only "in the absence of a showing to the contrary," and that "This presumption will, of course, yield to a showing that the shipper has the exclusive right and privilege of controlling the transportation service, * * *" The Commission in that decision further stated:
"The question as to who has the right to control and direct must be answered in the light of all the facts and circumstances surrounding the transaction between the carrier and shipper, and of the actual practices in the conduct of the operation thereunder. No element of such facts and circumstances is by itself controlling."
The Commission in the instant proceeding in effect made the presumption irrebuttable and repudiated its decision in the Church case by the following declaration:
"There is present, whenever the owner-operator drives his own equipment, the right and power of the lessor to defeat any supposed right to control that the shipper-lessee may believe exists."
This is true unless, of course, the Commission formulated a new rule, thinking, as this court is inclined to think, that this situation does not technically justify application of the presumption because it is not one involving "a lease of equipment with drivers by a carrier to a shipper," but a lease of equipment alone with the drivers to be supplied by the Company. In any event, the court does not agree with the reasoning of the Commission that the quoted conclusion necessarily follows.
The record before the Commission discloses that there was more than sufficient evidence to rebut any presumption or inference of transportation for-hire. The Company had the right to, and actually did control, direct and dominate the transportation of its products and the equipment and personnel concerned therewith. The owner-operators were not in substance engaged in the business of transportation for-hire, but were merely employees of the Company and were so considered by both the Company and themselves.
As is urged by defendants, substance, not form, should be the governing factor in determining whether these operations constituted transportation for-hire on the part of the owner-operators. United States v. La Tuff Transfer Service, supra; Georgia Truck System, Inc. v. Interstate Commerce Commission, supra. In the instant case both the form and the substance of the arrangements as revealed by the lease agreements, union contract and actual operations, clearly point to the fact that what is involved here is private carriage on the part of the Company, rather than transportation for-hire by the owner-operators. The Company dominates and controls the transportation in question just as it did prior to the inauguration of the leasing arrangements. The change in form alone did not change the substance of the Company's operations. The same degree of control is exercised by the Company over the operations of the owner-operators as is exercised over those of drivers of company-owned vehicles.
Defendants contend that there are three aspects of this transportation which the owner-operators retained a right to control. First, it is alleged that since the owner-operators are responsible for the maintenance of their own vehicles, they have the right to decide where and what kind of repairs are to be made. The testimony before the *282 Commission shows that Company personnel oversee maintenance and repairs of all equipment used by the Company; that the owner-operators have to meet the requirements of the Company as to state of repair and that their equipment is checked by Company personnel periodically to ascertain whether it meets certain requirements and whether specified repairs have been made. There is, therefore, no real control over maintenance exercised by the owner-operators. Second, defendants point out that the owner-operators garage their tractors at their homes and that they could use them for their own purposes and could even haul for others. Since drivers of company-owned vehicles also garage the vehicles they drive at their homes, no element of control appears by virtue of the fact that the owner-operators have that right. And, it appearing that the owner-operators are on call at all times to haul Company goods, it is far-fetched to speculate that they might possibly breach their lease agreements in order to haul for someone else. There is no evidence of any of them ever having done so. Third, defendants contend that the owner-operators retain considerable right to control their vehicles while driving them for the Company and that there is a possibility of a conflict of interest, say in a situation where an owner-operator might have to choose between stopping immediately to make repairs, thereby arriving late with a shipment, or continuing at the risk of incurring more expensive repairs. All drivers have some independent decisions to make, and as to possible areas of conflict, these are conjectural only and not of such stature as to constitute an element of control on the part of the owner-operators.
As was pointed out in the dissent to the Commission report, and the statement is equally applicable here, the cases most heavily relied on by the Commission to support its order involve a person or firm owning equipment, employing drivers and making both available to the lessee, or in some cases, to several lessees. The facts here are materially different. In addition, in each of the cases relied on by defendants, there was some element of control long considered important by the courts and the Commission which was retained by the lessor; or there were some duties which ordinarily fall on the carrier, private or otherwise, which were assumed by the lessor or no one.
Upon consideration of the record, the court concludes that the findings of the Commission are not supported by substantial evidence. For that reason the cease and desist order entered against the owner-operators must be set aside. Judgment will be entered accordingly.
NOTES
[1] Marion W. Daves is no longer employed by Oklahoma Furniture Manufacturing Co. and William M. Martin is now deceased.
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17 F.3d 78
UNITED STATES of America, Plaintiff-Appellee,v.Joe HERNANDEZ, Defendant-Appellant.
No. 92-7485.
United States Court of Appeals,Fifth Circuit.
March 7, 1994.
Joseph Ronald Barroso, Corpus Christi, TX (Court-appointed), for defendant-appellant.
James L. Turner, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, TX, for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before SMITH, DUHE, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
1
The Court withdraws the opinion issued in this case dated July 7, 1993, and substitutes the following:
2
Pursuant to a plea agreement which provided, inter alia, that the government "may" make a motion for a downward departure if the defendant renders substantial assistance, Joe Hernandez pleaded guilty to, and was convicted on, one count of violating 18 U.S.C. Sec. 922(g)(1) (felon in possession of a firearm). As he had been convicted of three prior felonies, Hernandez received a mandatory minimum sentence of fifteen years under 18 U.S.C. Sec. 924(e). On appeal, Hernandez asserts that the government breached the plea agreement by failing to make a motion for downward departure, and that the district court erred in finding that Hernandez had not provided substantial assistance. Finding that in the plea agreement there were significant ambiguities which were not resolved by the district court, we vacate the sentence imposed and remand this case for resentencing.
3
* FACTS
4
Hernandez was arrested in Corpus Christi, Texas, for public intoxication. During a search of Hernandez's person conducted incident to the arrest, a .25 caliber pistol was found by the local police. When they learned that Hernandez had several prior felony convictions, his case was transferred to the Bureau of Alcohol, Tobacco, and Firearms (ATF), which initiated a federal prosecution under 18 U.S.C. Sec. 922(g)(1). As a result of his three prior felony convictions, Hernandez was subject to a statutory minimum sentence under Sec. 924(e) of fifteen years (180 months).
5
Hernandez entered a plea of guilty to the firearms charge, after he and the government entered into a written plea agreement. It provided that in return for Hernandez's guilty plea the government would recommend credit for acceptance of responsibility and a sentence at the low end of the guideline range. The government concedes that "[a]t rearraignment, the [written] agreement was effectively amended by the Assistant United States Attorney [AUSA] who, after listing the terms of the written agreement," stated:
6
THE COURT: Is there a plea agreement?
7
MR. CUSICK: Yes, your honor. It's changed through Mr. Hernandez's plea of guilty to a single-count indictment. The Government has agreed pursuant to Rule 11(E)(1)(b) to recommend that he be given credit for acceptance of responsibility and that he be sentenced at the bottom of any applicable sentencing guidelines. Although this agreement has been reduced to writing and signed by the parties and is tendered to the Court for filing, I would point out that it is implicit although not spelled out in the agreement that if Mr. Hernandez should provide substantial assistance to the Government, either I guess through truthful information and testimony if necessary, that the Government may make a motion for downward departure at sentencing, and the extent of any downward departure would be in the sole discretion of the Court to make.1
8
The government acknowledges that the agreement which it made with Hernandez expressly provided that "[i]f [Hernandez] provides assistance, the government may make a motion for downward departure at the time of sentencing."
9
After the court accepted the guilty plea, but before the sentencing hearing, Hernandez provided "assistance" in two ways. First, he gave the government a hand-drawn map that ostensibly showed where a stash of cocaine could be found. The map was passed among several agents, but was never fully investigated (i.e., none of the agents used it to look for the stash of cocaine). Second, Hernandez provided the government with information (which the government insists was "stale") concerning drug dealing and illegally possessed guns in the Corpus Christi area.
10
Hernandez asserts that he provided the government with all of the information that it requested, but that the government simply failed to follow up on the information that he provided. In other words, Hernandez claims to have been ready and willing to provide any and all assistance that he was able to furnish, but the government failed to give him the requisite opportunity.
11
At the sentencing hearing, Hernandez proffered evidence concerning the amount of assistance that he had rendered. The Pre-Sentence Report (PSR) recommended a sentencing guideline range of 188-235 months and noted the 180-month (15 years) mandatory minimum sentence under Sec. 924(e). Taking the position that any assistance Hernandez had provided was insubstantial, the government refused to make a motion for downward departure under either U.S.S.G. Sec. 5K1.1 or 18 U.S.C. Sec. 3553(e). After giving Hernandez the opportunity to withdraw his plea when the government refused to make a motion for downward departure--an opportunity that was refused--the court sentenced him to 180 months, which was eight months less than the lowest end of the applicable guidelines range and precisely the mandatory minimum of fifteen years. Hernandez timely appealed.
II
ANALYSIS
A. Standard of Review
12
We have recently stated that "[w]hether the government's conduct violated the terms of a plea agreement is a question of law."2 The defendant has the burden of proving the underlying facts that establish a breach by a preponderance of the evidence.3 " 'In determining whether the terms of a plea agreement have been violated, the court must determine whether the government's conduct is consistent with the parties' reasonable understanding of the agreement.' "4
B. Hernandez's Claims of Error
13
1. What Constitutes "Substantial Cooperation"?
14
The thrust of Hernandez's claim is that, after he provided every bit of assistance within his power, the government breached the plea agreement by refusing to make a motion for downward departure. His claim, however, runs headlong into the district court's explicit finding that he did not provide "substantial" assistance to the government. As noted above, in a sentencing proceeding such as the one involved in the instant case, the district court must determine whether the government's conduct is consistent with the parties' reasonable interpretations of the plea agreement--here, the parties' interpretation of what might constitute substantial assistance. No such finding was made by the district court; it merely concluded--without making any discrete factual determinations as to the reasonable expectations of either Hernandez or the government--that the assistance provided by Hernandez was not "substantial."
15
As noted, Hernandez provided the government with a map, purporting to show the location of a stash of cocaine, as well as information about drugs and guns in Corpus Christi. At least implicitly, neither the government nor the district court deemed this information to be "substantial." The record, however, is silent as to just what the parties did believe, at the time the plea agreement was entered into, would constitute substantial assistance.
16
When he explained the amended plea agreement to the sentencing court, the AUSA described the assistance that the government thought Hernandez might provide as "either I guess ... truthful information and testimony if necessary." The government never requested that Hernandez testify in proceedings against other defendants in accordance with the agreement, and it never determined whether the information he provided (principally the map) was truthful. Nothing in the record indicates that, when the agreement was made, the government was only prepared to make a motion for downward departure if Hernandez provided information that actually helped bring about other prosecutions. The record is simply devoid of information concerning what quantity or quality of information and cooperation the parties contemplated that Hernandez would (but did not) provide in this case.
17
Moreover, as was frankly conceded by the government to this court at oral argument, the agreement was made when Hernandez had been incarcerated for over six months. Surely, when the bargain was made the government could have hoped for little more than that which Hernandez eventually provided--"jailhouse scuttlebutt." Again, it is unclear from the record what more Hernandez could have provided--or, more to the point, what more the government could possibly have contemplated that he would provide--in order to earn a motion for downward departure.
18
On remand, the district court must also consider the likelihood (or fact) that the assistance Hernandez could and did provide failed to increase in value (actually had no chance to become what the government might consider "substantial") due to the inaction of the investigators vis-a-vis the information. We have stated that when a defendant, "in reliance on [a government representation], accepted the government's plea offer and did his part, or stood ready to perform but was unable to do so because the government had no further need or opted not to use him, the government is obliged to move for a downward departure."5 In the instant case, Hernandez provided the government with different types of information, and the government failed to follow up on any of it. Considering the type of information that the government should have expected from a defendant like Hernandez, who had been incarcerated for over six months, we find it difficult to conceive of what more Hernandez could have provided that would be substantial without any subsequent verification by the investigators--verification that was clearly necessary but was never performed.
2. The Use of "May" in the Plea Agreement
19
The government's oral explanation of the plea agreement was to the effect that if Hernandez provides substantial assistance, "the government may make a motion for downward departure at sentencing."6 The record sheds no light on the degree of discretion, if any, the parties intended for the government to retain by the use of the permissive word "may" (as opposed to the mandatory "will" or "shall").
20
In Wade v. United States,7 the Supreme Court held that a trial court could not depart downwardly under Sec. 5K1.1 in the absence of a government motion to that effect. The Court also held that Sec. 5K1.1 and its statutory counterpart, 18 U.S.C. Sec. 3553(e), gives the government "a power, not a duty" to file such a motion.8 We have held, however, that the discretion to make a Sec. 5K1.1 motion, which was discussed in Wade, can be bargained away by the government in a plea agreement.9 Given the admirably candid concessions it made to this court in oral argument of the instant appeal, the government on remand cannot hereafter insist that Hernandez knowingly and intentionally walked into such an illusory "bargain."10
3. Departures Below the Mandatory Minimum
21
At oral argument, the parties discussed the general question, does the district court's authority to depart below a mandatory minimum depend upon whether the government's downward departure motion is made under Sec. 5K1.1 or under 18 U.S.C. Sec. 3553(e)? The agreement in the instant case does not specify under which provision the motion might be made in the event that Hernandez should provide substantial assistance. As the agreement was thus silent on this issue, the government's potential obligation to move for a downward departure is even more questionable.
22
After reviewing the supplemental briefs submitted to us, and conducting independent research on the matter, we join the majority of circuits which hold that the district court may depart below a mandatory minimum irrespective of whether the departure motion is made under either Sec. 5K1.1 or Sec. 3553(e).11 As our colleagues on the Fourth Circuit have stated: "Section 5K1.1 governs all departures from guideline sentencing for substantial assistance, and its scope includes departures from mandatory minimum sentences permitted by 18 U.S.C. Sec. 3553(e)."12
III
CONCLUSION
23
A substantial question remains unanswered concerning the intentions of the parties as to the nature, quality, and quantity of the information Hernandez was expected to provide in order to constitute "substantial assistance" under the subject plea agreement. Only after it first determines what the parties meant by using that term can the district court properly decide whether the government breached the plea agreement by refusing to move for a downward departure. The court must also determine the intentions of the parties concerning the use of the word "may" in the agreement--even though we have serious doubts that either party meant for the government to retain unbridled discretion merely by using that word. Finally, we note that if the district court should be inclined to depart below the mandatory minimum sentence following a motion by the government to depart downward under either U.S.S.G. Sec. 5K1.1 or 18 U.S.C. Sec. 3553(e), the court is not prohibited from so doing.
24
For the foregoing reasons, we VACATE Hernandez's sentence and REMAND this case for additional determinations--and eventual resentencing--consistent with this opinion.
1
Emphasis added
2
United States v. Watson, 988 F.2d 544, 548 (5th Cir.1993) (citing United States v. Valencia, 985 F.2d 758, 760 (5th Cir.1993))
3
Id. (citing United States v. Conner, 930 F.2d 1073, 1076 (4th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 420, 116 L.Ed.2d 440 (1991), and United States v. Hurtado, 846 F.2d 995, 997 (5th Cir.), cert. denied, 488 U.S. 863, 109 S.Ct. 163, 102 L.Ed.2d 133 (1988))
4
Id. (quoting Valencia, 985 F.2d at 761)
5
United States v. Melton, 930 F.2d 1096, 1098-99 (5th Cir.1991); see Watson, 988 F.2d at 552-53 (discussing Melton 's continued vitality after the Supreme Court's decision in Wade v. United States, --- U.S. ----, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992), when the government's discretion to make a Sec. 5K1.1 motion is limited by a plea agreement)
6
Emphasis added
7
--- U.S. ----, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992)
8
--- U.S. at ----, 112 S.Ct. at 1843
9
See Watson, 988 F.2d at 552-53
10
But cf. Watson, 988 F.2d at 552 n. 3.; see also id. at 553
11
See United States v. Cheng Ah-Kai, 951 F.2d 490, 492-93 (2d Cir.1991); United States v. Wade, 936 F.2d 169, 171 (4th Cir.1991); United States v. Keene, 933 F.2d 711, 714 (9th Cir.1991); see also U.S.S.G. Sec. 5K1.1 application note 1 ("Under circumstances set forth in 18 U.S.C. Sec. 3553(e) and 28 U.S.C. Sec. 994(n), as amended, substantial assistance in the investigation or prosecution of another person who has committed an offense may justify a sentence below a statutorily required minimum sentence." (emphasis added)). But see United States v. Hawley, 984 F.2d 252, 253-54 (8th Cir.1993) (holding that a "sentencing court can depart below the statutory mandatory minimum sentence only if the government files a motion for such a departure pursuant to 18 U.S.C. Sec. 3553(e)" and not merely U.S.S.G. Sec. 5K1.1); United States v. Rodriguez-Morales, 958 F.2d 1441, 1444-45 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 375, 121 L.Ed.2d 287 (1992)
12
Wade, 936 F.2d at 171
In its initial brief to this court, the government also argued that Hernandez had waived any error by declining the district court's offer to withdraw his guilty plea. We recognize that when the court made the offer to Hernandez, it was giving him little more than a Hobson's choice--if he withdrew his plea at that point, he would realize no benefit as the government had already received all the benefit from his waiver of rights, i.e., he had given substantial prejudicial evidence that could be used against him. In asserting during oral argument and in subsequent briefing to this court that this case should be remanded for additional factfinding and resentencing, however, we understand the government to have abandoned its claim that Hernandez waived any potential error by refusing the court's offer to withdraw his plea.
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314 Pa. Superior Ct. 16 (1983)
460 A.2d 350
COMMONWEALTH of Pennsylvania, Appellant,
v.
Reid EVANS.
Superior Court of Pennsylvania.
Argued June 7, 1982.
Filed May 13, 1983.
*17 Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Natale F. Carabello, Jr., Philadelphia, for appellee.
Before CAVANAUGH, ROWLEY and WATKINS, JJ.
*18 WATKINS, Judge:
This case comes to us on appeal from the Court of Common Pleas of Philadelphia County, Criminal Section, Trial Division, and involves a Commonwealth appeal from an order of the court below which granted the defendant's motion to suppress evidence. Without the suppressed evidence the Commonwealth will be unable to prosecute the case. See, Commonwealth v. Lapia, 311 Pa.Superior Ct. 264, 457 A.2d 877 (1983).
On July 30, 1980 at 2:57 P.M., two plainclothes police officers were operating an unmarked patrol car in a public parking lot in Philadelphia. As they drove through the parking lot they observed the defendant operating a 1978 Chevrolet Monte Carlo in the parking lot. Another male accompanied the defendant in the vehicle as a passenger in the right front seat. As the Monte Carlo approached the officers' vehicle the defendant looked directly at the officer whereupon he suddenly stopped the Monte Carlo so violently that the whole car vibrated. The defendant and his male passenger immediately departed the vehicle leaving it right where it was stopped and began moving away from the vehicle, each proceeding in a different direction. Before moving away the male passenger threw a screwdriver he had been carrying underneath the vehicle.
Upon observing this behavior, Officer Stephen Speck, one of the officers in the patrol car, approached the defendant when he was approximately twenty-five feet from the Monte Carlo and asked him what he was going to do with the car. The defendant answered by stating that the car was not his whereupon the officer walked him back to the Monte Carlo and noticed that its steering column was "broken out", the car was "messed up" and that it had been "hot wired." He then determined that the vehicle was owned by a Joyce Austin. The Monte Carlo, the screwdriver, and certain statements made by the defendant were obtained by the police as evidence. Defendant was later charged with theft by unlawful taking or disposition, theft by receiving stolen property, unauthorized use of a motor *19 vehicle, possessing instruments of crime, and criminal conspiracy.
The defendant made an untimely motion to suppress the evidence immediately prior to trial. The Commonwealth objected to the motion as it was not made in conformity with the Rules of Criminal Procedure, however, the court below agreed to hear the motion "in the interest of justice". The aforementioned facts were produced at the suppression hearing. After the hearing the court below granted the defendant's motion and suppressed the physical evidence of the Monte Carlo and the screwdriver. It also suppressed the statements made by the defendant to the police as the product of an unlawful search by the police. The court characterized the Commonwealth's evidence as establishing only that "two men (were) in the car, driving a car. There is nothing suspicious about that." The court then reasoned that the officers' actions in talking to the defendant and looking into the vehicle and observing the broken steering column and "hot-wiring" job were unlawful. The Commonwealth then appealed.
At the outset we note that the defendant's suppression motion was based solely on his claim that the officer acted unlawfully when he approached the defendant. Thus, the issue at hand is whether the officer did act unlawfully when he approached the defendant to inquire as to what he intended to do with the car.
Absent probable cause to arrest, an officer may stop a person to question him whom he reasonably believes is committing, has committed, or is about to commit a crime. If necessary, the officer may briefly detain such a person while obtaining more information. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Thus, an officer need not have probable cause to arrest someone in order to conduct a brief, investigatory inquiry. Commonwealth v. King, 247 Pa.Superior Ct. 443, 372 A.2d 908 (1977). To rule otherwise would mean that a police officer, lacking probable cause to arrest, would be forced to allow a *20 crime to be committed or a suspect to escape even though he had reasonable suspicion to believe that such was occurring. Any such ruling would render police officers helpless to prevent crimes from occurring or suspects from escaping. Fortunately such is not the law of Pennsylvania nor has it ever been.
The issue then is not whether the police officer had probable cause to arrest the defendant when he approached him but whether the defendant's actions had aroused a "reasonable suspicion" in the officer's mind, justifying his initial questioning of the defendant. We find that they did.
Contrary to the lower court's finding that all defendant had been doing was "driving a car", the testimony reveals that defendant, upon observing the police officers, brought the vehicle he was operating to an abrupt halt in the driving lane of the public parking lot. He stopped the vehicle so suddenly that the entire car vibrated. He then departed the vehicle and began to move away from it. The male passenger in the vehicle also departed the car and began moving away from it in the opposite direction. Before moving away from the car he threw a screwdriver underneath it. Upon observing all of this, the officer was certainly justified in suspecting that some type of criminal activity was afoot and that the defendant might be involved in it. At the very least the officer was justified in approaching the defendant and asking him what he intended to do with the car. Surely there was nothing unlawful about asking that question of the defendant under the aforesaid circumstances. When the defendant then informed the officer that he was not the owner of the car the officer was justified in walking the defendant back to the vehicle to make further inquiries. In fact he had the duty to do so and he would have been derelict to do less. Thus, when the officer approached the Monte Carlo and observed the broken steering column and "hot-wiring" job he was lawfully in a position to observe same which were in "plain view" to anyone standing outside the vehicle. Objects falling in the plain view of an officer who has a right to be *21 in the position to have a view are admissible evidence. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The officer had a right to be standing outside a vehicle parked in the driving lane of a public parking lot. He would have had the right even had he not observed what he did of defendant's previous behavior. Thus, we find that the officer did nothing unlawful in observing the condition of the steering mechanism and the hot-wiring job inside the car. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. Adams v. Williams, supra. Furthermore, we find that the totality of the circumstances surrounding this incident gave the officer sufficient grounds to stop the defendant initially and that his later observations gave him probable cause to arrest the defendant. As such we reverse the order of the court below suppressing the aforesaid evidence and hold that said evidence is admissible at trial.
Order reversed and case remanded for trial.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Powell and Alston
Argued at Richmond, Virginia
STEPHEN L. NELSON, S/K/A
STEPHEN LEONARD NELSON
MEMORANDUM OPINION * BY
v. Record No. 2936-08-2 JUDGE RANDOLPH A. BEALES
JANUARY 12, 2010
COMMONWEALTH OF VIRGININA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Robert H. Morrison (Law Office of Robert H. Morrison, P.C., on
brief), for appellant.
Leah A. Darron, Senior Assistant Attorney General (William C.
Mims, Attorney General, on brief), for appellee.
Stephen L. Nelson (appellant) was convicted by a jury of first-degree murder, in violation
of Code § 18.2-32, and use of a firearm during the commission of the murder, in violation of
Code § 18.2-53.1. Appellant argues on appeal that the trial court abused its discretion when it
refused to permit him to cross-examine a prosecution witness concerning the witness’ unrelated
robbery indictment. We disagree with appellant’s argument, and, for the following reasons, we
affirm appellant’s convictions.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
In the early morning of July 7, 2007, the body of the victim, A.R., 1 was found in a rural area
of Halifax County. A.R. died from a single gunshot wound to the head. Investigator J.D. Clay
found a live round, a spent casing, and a bullet near A.R.’s body.
On July 9, 2007, two days after A.R.’s body was discovered, Investigator Clay met with
Jacob Bunker, who identified himself as a long-time friend of appellant. Bunker told the
investigator that appellant killed A.R. on July 6, 2007.
According to Bunker, he and appellant drank large quantities of alcohol and smoked
marijuana on July 6, while traveling to various places in appellant’s red Dodge Stratus. After
stopping for dinner on their way to Danville, they saw A.R. walking on the side of the road. A.R.,
who said that she needed a ride to Danville, got in the back seat of the vehicle. While appellant
drove in the direction of Danville, A.R. accepted $10 in exchange for giving Bunker oral sex and
then engaged in consensual intercourse with Bunker. Appellant proceeded to drive to a field.
Appellant and A.R. then exited the vehicle presumably to engage in sexual activity, Bunker told
the investigator. As appellant exited the vehicle, Bunker saw the handle or grip of a Ruger
firearm tucked into the waistband of appellant’s pants. Moments later, as A.R. began to get back
in the vehicle, appellant told her that she had “dropped twenty bucks” near the rear of the
vehicle. Bunker could hear A.R. reply that she did not see any money there. Bunker then heard
a gunshot, and something hit the ground. Appellant got in the driver’s seat, said to Bunker that
“that b**ch thought she was going to get my twenty bucks,” and drove away.
Based on this information, Investigator Clay obtained a search warrant for appellant’s
residence, where a firearm matching Bunker’s description and a t-shirt containing A.R.’s blood
1
We use initials for the victim in this opinion rather than her actual name so as better to
protect the privacy of the deceased victim and her family.
-2-
were found. Blood stains from A.R. were also found on the rear wheel well and along the rear
passenger door running board of appellant’s car, as well as on the back of the car’s front seat.
On October 16, 2007, Bunker was arrested in Pittsylvania County on a robbery charge
that, appellant acknowledges, was unrelated to A.R.’s murder.
At appellant’s preliminary hearing on December 12, 2007, appellant’s counsel asked
Bunker if he had sought “any credit or preferential treatment” in his Pittsylvania County case in
exchange for testifying against appellant in the Halifax County murder trial. Bunker responded
that he had asked his lawyer whether “help[ing] out the Commonwealth” by giving the
authorities information on the A.R. murder would “be an outlook on my case.” Appellant’s
counsel then asked Bunker whether he hoped “that what you say today is going to help you in
your other collateral problems.” Bunker said that he did not harbor such a hope “because it
doesn’t work like that.”
After Bunker testified at appellant’s preliminary hearing – but before appellant’s trial
occurred – the Pittsylvania County robbery indictment against Bunker was discharged by nolle
prosequi. The Halifax County prosecutor in appellant’s murder case indicated that her office had
nothing to do with the dismissal of the Pittsylvania County charge and had never offered any
deal to Bunker for his testimony in appellant’s case.
The Commonwealth filed a pretrial motion in limine to prohibit appellant from
introducing at his murder trial “[t]he allegations, arrest, detention or any information whatsoever
concerning charges placed against Jacob Bunker subsequent to the present charges being placed
against the Defendant.” The trial court ruled that appellant’s counsel was permitted to ask
Bunker whether he “received any offers of leniency from this jurisdiction or any other
jurisdiction in exchange for his testimony,” but that counsel was not permitted to reference the
specific Pittsylvania County robbery charge unless Bunker indicated that he, in fact, received
-3-
offers of leniency. At trial, Bunker testified that he did not receive any offers of leniency in
exchange for his testimony.
II. ANALYSIS
Appellant argues that the trial court erred by refusing to permit his cross-examination of
Bunker regarding the Pittsylvania County charge. The court’s evidentiary ruling here is reviewed
for abuse of discretion. 2 Commonwealth v. Wynn, 277 Va. 92, 97, 671 S.E.2d 137, 139 (2009).
“An accused has a right to cross-examine prosecution witnesses to show bias or
motivation [to fabricate] and that right, when not abused, is absolute.” Brown v.
Commonwealth, 246 Va. 460, 463-64, 437 S.E.2d 563, 564-65 (1993) (emphasis added). When
evidence “is relevant to show that a witness is biased or has a motive to fabricate, it is not
collateral and should be admitted.” Banks v. Commonwealth, 16 Va. App. 959, 963, 434 S.E.2d
681, 683 (1993). However, the right to cross-examine a witness to show bias or motivation to
fabricate “may not be employed as a device to confuse the issues before the jury or to imply the
existence of evidence that the jury is not permitted to consider.” Lewis v. Commonwealth, 269
Va. 209, 214, 608 S.E.2d 907, 910 (2005). Thus, an appellate court “must examine the substance
of the anticipated testimony” to determine whether an accused’s right to cross-examine a
prosecution witness has been violated. Brown, 246 Va. at 464, 437 S.E.2d at 565.
Appellant contends that the trial court erroneously focused on whether Bunker actually
entered into an agreement for leniency on his Pittsylvania County robbery charge – which,
appellant concedes, Bunker did not. Instead, appellant asserts that the appropriate inquiry was
2
The Commonwealth also argues that, even if the trial court abused its discretion here,
the convictions should be affirmed under the harmless error doctrine because Bunker was
cross-examined concerning a prior felony conviction for lying to a police officer that occurred
after the date of A.R.’s murder and because the evidence of appellant’s guilt was overwhelming.
Because we hold that the trial court did not abuse its discretion here, we need not address the
Commonwealth’s claim of harmless error.
-4-
whether Bunker had a subjective belief that he could receive favorable treatment on his robbery
charge by testifying at appellant’s murder trial. Appellant relies on Bunker’s statement at the
preliminary hearing that he asked his attorney whether testifying against appellant would “be an
outlook” on his Pittsylvania County case.
Appellant, however, was required to point to at least some evidence permitting an
inference that Bunker’s testimony was motivated or induced “by considerations of self-interest.”
See Barker v. Commonwealth, 230 Va. 370, 376, 337 S.E.2d 729, 734 (1985); see also Woody v.
Commonwealth, 214 Va. 296, 299, 199 S.E.2d 529, 531 (1973) (holding that a “predicate for
bias” existed when two witnesses, who confessed to participating in the robbery with Woody,
were not charged in the offense); Banks, 16 Va. App. at 964, 434 S.E.2d at 684 (“If believed, the
trier of fact could reasonably infer from the defendant’s proffered evidence that Barnwell had a
strong motive to implicate the defendant in order to conceal his own alleged drug-dealing
activities.”).
In Brown, for instance, the defendant tried to elicit facts showing that a prosecution
witness, Sydow, had not yet been tried for several crimes – thereby permitting an inference that
Sydow could receive leniency in return for his testimony against him. Brown, 246 Va. at 462,
437 S.E.2d at 564. The Supreme Court held that the trial court erroneously prevented Brown
from asking cross-examination questions that could establish Sydow “was motivated by a
bargain for leniency relating to the charges pending against him, particularly since Sydow
admitted that the trial of those charges had been continued each month since the date of his
arrest.” Id. at 464, 437 S.E.2d at 565 (emphasis added).
In this case, unlike in Brown, no evidence connected Bunker’s testimony in appellant’s
murder trial with a possibility of leniency in his Pittsylvania County robbery case. Bunker’s
robbery indictment had already been dismissed by nolle prosequi well before appellant’s trial
-5-
date, and nothing indicated that this disposition in Pittsylvania County was connected in any way
to Bunker’s testimony in appellant’s Halifax County murder trial. Instead, the Halifax County
prosecutor here unequivocally stated that her office had no input in the decision in Pittsylvania
County to discharge Bunker’s robbery indictment, and appellant did not challenge this assertion.
Thus, the fact that Bunker’s Pittsylvania County robbery charge was nolle prosequied prior to
appellant’s murder trial 3 in Halifax County had no bearing on Bunker’s credibility as a witness.
Appellant’s claim that Bunker was biased or had a motive to fabricate the murder
allegation against him at trial is further undercut by the fact that Bunker implicated appellant in
A.R.’s murder on July 9, 2007, over three months before Bunker was charged with robbery in
Pittsylvania County on October 16, 2007. Therefore, when Bunker gave his statement against
appellant on July 9, 2007, he could not have been motivated by a possible bargain for leniency in
his Pittsylvania County case, which did not even exist at the time.
In sum, the purported connection between Bunker’s robbery charge and his testimony at
appellant’s murder trial is simply too tenuous to permit the inference of witness bias or motive to
fabricate. See Banks, 16 Va. App. at 963, 434 S.E.2d at 683. Accordingly, the trial court did not
abuse its discretion in granting the Commonwealth’s motion in limine here.
3
Appellant argues that, even though Bunker’s robbery charge had been nolle prosequied
by the time of appellant’s murder trial, Bunker’s testimony could still have been influenced by a
hope that he would not be re-indicted on the robbery charge at some time thereafter. See Miller
v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269, 273 (1977) (holding that the prosecution
of a nolle prosequied charge may proceed in the future, although a new indictment is required).
However, the record on appeal here contains no indication that the Pittsylvania County
authorities ever intended to re-indict Bunker. Therefore, appellant fails to create an inference
that Bunker’s testimony in appellant’s Halifax County murder trial “was motivated by an
expectation of leniency in a future trial” in Pittsylvania County on a future robbery indictment.
See Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977). In light of these
facts, to conclude otherwise would essentially permit a nolle prosequi at some point in the past
(even many years ago) of a felony indictment against a prosecution witness to be used as
evidence to attack that witness at any point in the future, because the witness would be
supposedly afraid – even many years later – of being re-indicted for the felony offense for which
he had once been indicted.
-6-
III. CONCLUSION
For the foregoing reasons, we affirm appellant’s convictions for first-degree murder and use
of a firearm in the commission of murder.
Affirmed.
-7-
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955 F.Supp. 1268 (1997)
UNITED STATES of America, Plaintiff,
and
State of Colorado, Intervenor,
v.
BRODERICK INVESTMENT COMPANY, Tom Connolly as Trustee, and Burlington Northern Railroad Company, Defendants.
Civil Action No. 86-Z-369.
United States District Court, D. Colorado.
February 25, 1997.
*1269 *1270 Stephen Taylor, Assistant U.S. Attorney, Denver, CO, Jerel L. Ellington, Environment & Natural Resources Division, Denver, CO, Richard L. Sisk, Office of Regional Counsel, U.S. Environmental Protection Agency, Region VIII, Denver, CO, for plaintiff.
Robert Eber, Attorney General's Office, Natural Resources Section, Denver, CO, for intervenor.
Gary E. Parish, Robert J. Potrykus, Jr., LeBoeuf, Lamb, Greene & MacRaie, L.L.P., Denver, CO, for defendant Burlington.
AMENDED MEMORANDUM OPINION AND ORDER
WEINSHIENK, District Judge.
I. BACKGROUND:
This matter, before the Court under 28 U.S.C. § 1331, relates to environmental contamination and clean-up at the Broderick Wood Products Company site (Site), a 64 acre parcel located immediately northwest of Denver in Adams County, Colorado. From 1947 to 1981, Broderick Wood Products Company operated a wood treatment facility at the Site. Process wastes were initially disposed in two unlined impoundments in the north-west portion of the Site; starting in 1955, however, waste products were burned off due to extensive seepage just to the north of the property line.
The United States Environmental Protection Agency (EPA) conducted several investigations of the Site, beginning in April, 1981. In 1984, the Site was placed on the National Priorities List for clean-up pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The United States initiated this case in 1986. At that time, the parties from which the United States sought response costs were the Broderick Investment Company (BIC), which had assumed the assets and liabilities of Broderick Wood Products Company, and the current and former trustees of BIC (collectively, the BIC defendants). In March, 1992, EPA notified Burlington Northern Railroad Company (BN) that it was a potentially responsible party (PRP) and, as such, might be liable for Site clean-up costs. BN was added as defendant to this action four months later.
On December 2, 1993, the Court granted summary judgment finding the BIC defendants liable for all CERCLA response costs incurred by the United States at the Site. A trial as to the liability of BN was held in April, 1994, followed by a separate trial on the divisibility of harm. By Order entered on August 26, 1994, the Court found that there were two plumes of contamination and, accordingly, the harm was divisible. BN was found to be jointly and severally liable for response costs incurred in connection with the northwest section of the Site, and for contamination emanating from that area.
On November 8, 1995, the Court approved a Consent Decree between the United States, the State of Colorado, and the BIC defendants. *1271 The sole remaining issue concerns the amount of response costs, if any, recoverable from BN. The United States seeks all response costs incurred in connection with the area for which the Court previously found BN to be liable. Colorado seeks part of the funds it expended in connection with a Superfund State Contract, which requires the state to pay 10 percent of total response costs. BN claims that the actions of the EPA, its clean-up decisions, and selected remedies were arbitrary and capricious and inconsistent with the National Contingency Plan (NCP), and thus not recoverable. BN further claims that the State's claims are derivative and subject to these same defenses. On November 18 and 19, 1996, the Court heard arguments on these issues as well as testimony from each side's expert.
II. BN'S ASSERTED DEFENSES
A. Standard Of Review
Section 107(a) of CERCLA provides, "Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section," a PRP "shall be liable for ... all costs of removal or remedial action incurred by the United States government ... not inconsistent with the national contingency plan." 42 U.S.C. § 9607(a). CERCLA defines "removal" as
the cleanup or removal of released hazardous substances from the environment, ... such actions as may be necessary to monitor, assess, and evaluate the release or threat of release ... the disposal of removed material, or taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment.... The term includes, in addition, ... action taken under section 9604(b) of this title.
42 U.S.C. § 9601(23). Generally, section 9604(b) includes investigation, monitoring and other information gathering activities undertaken to characterize the hazardous substances, and activities relating to planning or directing response actions and to the recovery of response costs. See id. § 9604(b).
Similarly, CERCLA defines "remedial actions" as
those actions consistent with permanent remedy taken instead of or in addition to removal actions ... to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or to the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement ... cleanup, recycling or reuse, diversion, destruction, ... onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment.
42 U.S.C. § 9601(24).
The parties do not dispute that the United States has incurred response costs; in fact, the United States and BN have reached a stipulation concerning the costs allocable to that portion of the Site for which BN is jointly and severally liable. (See Pre-Trial Stipulations Of Plaintiff And Defendant, United States v. Broderick Investment Co., No. 86-369 (D.Colo. Oct. 10, 1996)). Accordingly, BN bears the burden of showing that the actions of United States, acting through the EPA, were inconsistent with the National Contingency Plan (NCP).[1]U.S. v. Hardage, 982 F.2d 1436, 1442 (10th Cir.1992), cert. denied, 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993). To meet this burden, BN must show that "the EPA acted arbitrarily and capriciously in choosing a particular response action to respond to a hazardous waste site." Id.; see also 42 U.S.C. § 9613(j)(3).
The United States argues that in addition to demonstrating arbitrary and capricious decision-making, BN must also show that any departure from the NCP resulted in expenditures demonstrably in excess of those that would have been incurred absent such a departure. In support, the United States *1272 cites O'Neil v. Picillo, 682 F.Supp. 706, 729 (D.R.I.1988), aff'd, 883 F.2d 176 (1st Cir., 1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1115, 107 L.Ed.2d 1022 (1990). Although in O'Neil the district court adopted such a rule, this issue was not before the court of appeals and is not addressed in its opinion. See 883 F.2d at 176-183. Moreover, it appears that the O'Neil district court is alone in imposing this additional requirement. See, e.g., Wash. State Dept. Of Transp. v. Natural Gas Co, 59 F.3d 793, 805 (9th Cir.1995) (disallowing response costs defendant proved to be the result of arbitrary and capricious actions); In re Bell Petroleum Srvcs., Inc., 3 F.3d 889, 907 (5th Cir.1993) (same); United States v. Princeton Gamma-Tech., Inc., 31 F.3d 138, 143-44 (3d Cir.1994) (costs may be disallowed if defendant proves action was arbitrary and capricious). Accordingly, the Court will apply the standard as set forth by the Tenth Circuit in Hardage, and disallow any costs that BN proves were incurred due to an arbitrary and capricious choice of response actions, without requiring any additional showing on excess cost. See United States v. Hardage, 982 F.2d at 1441-42.
B. Notification Of Potentially Responsible Party
BN asserts that the United States and Colorado should be precluded from recovering any response costs they incurred prior to notifying BN that it was a PRP. EPA began work at the Site in 1982. By the time the Site was placed on the National Priorities List in September, 1984, EPA had notified the BIC defendants of their prospective liability. BN was first informed of its status as a PRP eight years later, on March 31, 1992.
BN argues that although it is liable for all response and removal actions not inconsistent with the NCP, see 42 U.S.C. § 9607(a), the United States' failure to notify BN of its liability prior to the incurrence of response costs nonetheless precludes the United States from recovering those costs as damages, in other words, that failure acts as a bar to liability prior to March 31, 1992. According to BN, identification and notification of PRPs is a "response" or "remedial action" that CERCLA requires EPA to carry out, and the agency's failure to do so was arbitrary and capricious, and inconsistent with the NCP. BN has failed, however, to point to any statutory language or case law to support its proposed definitions. Indeed, the Court has been unable to find any indication that Congress intended for these terms, whose definitions are set out in detail in the statute, see 42 U.S.C. §§ 9601(23) and (24), to encompass notification of PRPs. See also United States v. Hardage, 733 F.Supp. 1424, 1434 (W.D.Okla.1989), rev'd other grounds, 982 F.2d 1436 (10th Cir.1992), cert. denied, 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993) (permitting United States to recover response costs incurred prior to notification of PRPs).
CERCLA requires the agency to make "reasonable efforts to identify and notify potentially responsible parties as early as possible before selection of a response action." 42 U.S.C. § 9613(k)(2)(D). That same provision states, "Nothing in this section shall be construed as a defense to liability." Id. BN accordingly relies upon EPA guidelines concerning PRP identification and notification to support its proposed recovery bar. Nonetheless, even assuming that section 9613(k)(2)(D) does not by its own terms preclude a failure to notify defense, BN has failed to provide adequate statutory or logical support for its proposal that the Court apply standards other than the NCP, an approach that numerous other courts have rejected. See, e.g., United States v. American Cyanamid, 786 F.Supp. 152, 161 (D.R.I.1992); New York v. General Electric Co., 592 F.Supp. 291, 302 (N.D.N.Y.1984); United States v. Reilly Tar & Chem. Corp., 546 F.Supp. 1100, 1118 (D.Minn.1982); see also United States v. Hardage, 982 F.2d 1436, 1441 (10th Cir.1992), cert. denied, 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993) (CERCLA is a strict liability scheme); 42 U.S.C. §§ 9607(b) (enumerating explicit, limited defenses).
Finally, prior to BN's joinder, this litigation, and, indeed, all matters concerning Site clean-up were vigorously and throughly contested by the BIC defendants. In addition, the failure of the United States and BN to *1273 reach a settlement despite four years of opportunities in this litigation undermines BN's wistful argument that, with more timely notification, it might have reached an early settlement with EPA. In short, the Court is not convinced that this matter would have progressed any differently had BN received notification concurrently with the other PRPs. For all of these reasons, the United States' late notification of BN was not an action inconsistent with the NCP or otherwise a defense to recovery, and the United States and Colorado may recover response costs incurred prior to March 31, 1992.
C. Decisions Associated With Interim Remedies
EPA's first Record Of Decision (ROD 1), issued on June 30, 1986, recorded the agency's choice of interim remedies designed to control the major sources of contamination and direct contact exposure. (Environmental Protection Agency, Superfund Record Of Decision: Broderick Wood Products, CO., June 30, 1996, at i.) (ROD 1) ROD 1 selected several remedial activities, including excavation and on-site incineration of the sludge and oil contained in two impoundments, with off-site disposal of the residual ash. (Id., at abstract.) EPA termed this interim remedy Operable Unit 1 (OU1).
In September of 1988, the EPA published an Amendment to ROD 1 (Amended ROD) which selected a different remedy for the sludges. "Based on new technical data and cost information obtained subsequent to the June 1988 ROD," the document explains, "EPA has reconsidered its decision to employ on-site incineration." (Environmental Protection Agency, Amendment To June 1988 Record Of Decision Broderick Wood Products, Sept. 1988, at 1.) (Amended ROD) Instead, the agency chose to utilize "off-site reclamation of the useful components of the sludge, and incineration and disposal of the residues." (Id., at 2.)
BN challenges two actions taken in connection with OU1: EPA's decision to hire 7-7, Inc. to perform the on-site component of the sludge reclamation process and the shipment to Alabama and alleged incineration of 303 boxes of rocks that were removed from the sludge. At this time, the Court reserves ruling on the issue of removal from the Site and incineration of solids during OU1.
Utilization of 7-7, Inc.
The implementation contract for OU1 awarded a portion of the on-site work to 7-7, Inc. Using its patented technology, 7-7, Inc. excavated the sludges from temporary holding cells, hauled them to an on-site mixing tank, and combined the sludges with a solvent to make the mixture pumpable. BN argues that the initial decision to use 7-7, Inc. was not in conformance with the remedy set forth in ROD 1 and the Amended ROD, and, accordingly, increased costs of $201,094, which BN claims are attributable to the use of 7-7, Inc., should be disallowed.
As provided by the 1990 NCP, design and implementation of remedial actions "shall be in conformance with the remedy selected and set forth in the ROD or other decision document for that site." 40 C.F.R. § 300.435(b)(1). Accordingly, if a remedial action did not correspond to the ROD, it fails to conform to the NCP, and the associated costs are not recoverable. See 42 U.S.C. § 9607(a).
After careful examination of the relevant law and facts, however, it appears to the Court that the decision to utilize 7-7, Inc. was not contrary to OU1. BN has not pointed to any evidence that 7-7, Inc. did not perform the sludge removal, preparation, and packaging work specified in the Amended ROD. At most, the choice of subcontractors resulted in increased costs, albeit costs commensurate with the selected remedy. Because even unreasonable or excessive costs should not be disallowed so long as the agency's decision conformed to the NCP, BN may be charged for the costs attributable to the decision to employ 7-7, Inc. See, e.g., United States v. Hardage, 982 F.2d 1436, 1443 (10th Cir.1992), cert. denied, 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993) (§ 9607(a) "does not limit the government's recovery to `all reasonable costs'") (italics omitted); United States v. Northeastern Pharmaceutical & Chemical Co., Inc., 810 F.2d 726, 747-48 (8th Cir.1986), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987) *1274 ("CERCLA does not refer to `all reasonable costs" but simply to `all costs'") (italics omitted).
D. Decisions Associated With Final Remedies
Operable Unit 2 (OU2) was the final remedy and included remediation of the conditions EPA characterized as the Site's principal threats. EPA recorded its selection of a remedy for OU2 in a ROD published in March, 1992 (ROD 2). BN seeks disallowance of costs associated with two aspects of OU2: remediation of groundwater contamination and cleanup to an allegedly over-protective cancer-risk level.
1. Remediation of ground water contamination
According to studies cited in the ROD for OU2, by 1992, contamination in the surficial aquifer had migrated at least 500 feet north of the Site. (See Environmental Protection Agency, Superfund Record of Decision: Broderick Wood Products, CO, Mar. 24, 1992, app. C at 9.) (ROD 2) ROD 2 also indicated that although private wells exist in the area to which contamination had spread, none were used for domestic purposes at that time, and all homes and businesses in the area were served by independent municipal water supplies. (See id., app. C at 11.)
After analyzing four alternative treatments for the surficial aquifer, ROD 2 selected a two-phase process involving both ex-situ and in-situ elements. (See id., abstract at 2.) In addition, it called for 30 years of monitoring and institutional controls to limit access to the contaminated aquifer. (See id.)
In February, 1995, EPA published an Explanation Of Significant Differences (ESD) that set forth a significantly altered remedy for the surficial aquifer. (See Environmental Protection Agency, Explanation Of Significant Differences for the Ground-Water Remedy, Feb. 1995.) (ESD) The ESD indicated that information developed through additional studies and preliminary implementation of the OU2 remedy had revealed, inter alia, that natural biodegradation was a sufficient remedy for the plume to the north of the Site, and no technology would be capable of achieving the target remediation levels within a reasonable amount of time. (See id., at 9). Accordingly, the ESD established new contamination reduction goals and required their attainment at specific points in the aquifer rather than throughout the plume of contamination. (See id., at 7.) The ESD also called for construction of a wall to limit the spread of contamination off-site. (See id.)
BN raises two criticisms. First, BN asserts that the additional studies that catalyzed the ESD were not authorized by ROD 2 and therefore constituted a remedial design/remedial action activity inconsistent with the NCP. See 40 C.F.R. § 300.435(b). Second, BN argues that EPA was arbitrary and capricious in requiring additional studies to accept conclusions concerning groundwater remediation that, according to BN, both the BIC defendants and BN had urged for some time.
BN's first point lacks merit. As indicated by the United States, section 300.435(b) does not prohibit conducting additional studies. See 40 C.F.R. § 300.435(b). In fact, by authorizing the agency to prepare an ESD when there are differences that "significantly change but do not fundamentally alter the remedy selected in the ROD with respect to scope, performance, or cost," the NCP contemplates that a remedy may be altered on the basis of additional information. 40 C.F.R. § 300.435(c)(2)(i). By contrast, punishing EPA for refining its remedy, a course BN implicitly advocates, would create a reverse incentive to ignore new information.
BN's second point is equally unpersuasive. BIC's comments on ROD 2 did not anticipate all, or even many, of changes set forth in the ESD. (See Shephard, John P. & Frank P. Preger, Comments of Broderick Investment Company On Proposed Plan for Broderick Wood Products Site Final Remedy (Operable Unit 2), Nov. 22, 1991, at 18-41.) Moreover, although BN's correspondence to EPA memorialize BN view that the additional studies did not provide "new" information (see, e.g., Letter from David C. Seep to Armando Saenz of Oct. 12, 1994, at 2 ("The `new' data was not necessary to reach the conclusion that the remediation goals listed *1275 in the ROD for on-site shallow groundwater could not be met")), BN has failed to indicate by whom and when, prior to the publication of ROD 2, EPA was made aware of the information that led to the ESD. Accordingly, because BN has failed to satisfy its burden of proof, the United States and Colorado may recoup costs incurred in connection with the additional studies and preparation of the ESD.
2. Cancer risk
In conducting risk management and remedial design and selection for OU2, EPA utilized a baseline target for the maximum acceptable cancer risk at the Site following all clean-up activities. Prior to selecting a remedy, EPA is required to establish remediation goals that "are protective of human health and the environment." 40 C.F.R. § 300.430(e)(2)(i). The NCP directs EPA to consider several factors; for cancer risk, the NCP specifically indicates:
For known or suspected carcinogens, acceptable exposure levels are generally concentration levels that represent an excess upper bound lifetime cancer risk to an individual of between 10-4 and 10-6 using information on the relationship between dose and response. The 10-6 risk level shall be used as the point of departure for determining remediation goals....
Id. § 300.430(e)(2)(i)(A)(2).
Over strong objection from both BIC and BN, EPA mandated a cancer risk level of 10-5, or one case attributable to Site contaminants for every 100,000 persons subjected to continual exposure over a 70-year lifetime. The PRPs had encouraged EPA to adopt a less-protective standard of 10-4, or one increased case for every 10,000 continually-exposed persons. BN claims that EPA's cancer risk target was based on erroneous assumptions about current Site conditions and likely future uses, and that the 10-4 level would be sufficiently solicitous of human health and far more cost effective than mandating the more stringent clean-up. Thus, argues BN, EPA acted arbitrarily and capriciously in requiring clean-up to a 10-5 risk factor.[2]
As an initial matter, it appears there were shortcomings in EPA's analysis of existing Site conditions. As EPA admits, its risk calculations assumed continuing exposure to on-Site sludges. (See Combined Reply In Supp. Of United States' Mot. For Partial Summ.J. at 76, United States v. Broderick Investment Co., No. 86-369 (D.Colo. Sept. 27, 1996); Shephard & Preger, at 8.) Yet, as was pointed out to EPA prior to the selection of the OU2 remedy, the OU1 objective was removal of those sludges. (See id.; see also Am. ROD, Declaration Statement at 2.) Moreover, a Site assessment following OU1 indicated that approximately 98% of the sludges were removed. (See Remediation Technologies, Inc., Removal and Storage of Main And Secondary Impoundment Sludges, Dec. 18, 1990.)
EPA's response is two-fold. First, EPA argues that when it prepared the OU2 risk assessment, it was impossible to ascertain the sludge concentration that would remain following OU1 because the interim remedies had not yet been completed. At oral argument, the agency presented the additional argument that the remaining traces of sludge were so toxic that removal of 98% of their volume would not appreciably reduce overall carcinogenicity. In essence, EPA insists that because of these difficulties, its decision to adopt a standard more protective of human health should not be questioned.
Certainly, the mission of EPA is to protect human health and the environment. Nonetheless, that mission may not be advanced without consideration of any other policies. See 40 C.F.R. §§ 300.430(e)(2)(i)(A)(3), (4), and (5) (directing EPA to consider technical limitations, uncertainty, and "other pertinent information" in setting remediation goals). *1276 Even accepting EPA's argument that ascertaining the post-OU1 cancer risk was practically impossible, it was nonetheless arbitrary and capricious for EPA to assume that cancer risk would remain unchanged following its multi-million dollar sludge removal operation.
BN also points out a second problem in EPA's risk assessment. Although ROD 2 states that "EPA's proposed plan assumed an industrial future use scenario for the site," (see ROD 2, app. C, at 24), EPA also incorporated an on-site residential scenario into its evaluation of remedial options. (See ROD 2, at 16.) EPA justified this unlikely premise by pointing to the redevelopment of two Denver-area rail yards, more particularly the Coors Field area which includes commercial and residential uses. "Therefore," EPA wrote, "it is not beyond the realm of possibility to assume a similar future for the ... rail yard southwest of the Broderick site. Changing sequential uses for industrial and railroad properties are common in developing urban areas, even if the current uses have lasted for 75 to 100 years." (ROD 2, app. C, at 25.)
This last sentence, however, exposes the shortcoming in EPA's analysis. The Site has a long history as an industrial location, and is surrounded by other industrial yards, some of which are also seriously contaminated and subject to environmental clean-up. Certainly, it is possible that in the future, some redevelopment of the land around the Site might occur. Nonetheless, on the basis of the agency's own documents, EPA decision-makers were, or should have been, aware that "the residential population within the area seems to be declining" and that in fact "half of the census tracts within a two-mile radius of the [Site] actually lost population between 1980 and 1985." (See 1 Endangerment Assessment Report, Sept. 1990, at 4-1.) Accordingly, the Court is satisfied that it was arbitrary and capricious for EPA to mandate clean-up activities on the basis of possible, but highly improbable, land-use scenarios.
Finally, even leaving aside these two problems, it is apparent that EPA's risk assessment was statistically flawed. Dr. Glen Milner, BN's expert toxicologist, testified that a 10-5 risk factor is appropriate for a population of 100,000 subjected to continuous exposure over a 70-year period. If fewer than 100,000 persons are exposed, the one additional incident of cancer prevented by utilizing a 10-5 risk factor will never be realized, and a 10-4 factor is appropriate. Because of the improbability that 100,000 persons might live or work in close proximity to the Site, the Court is satisfied that it was arbitrary and capricious for EPA to utilize a risk factor of 10-5.
III. ALLOCATION OF BIC SETTLEMENT CREDITS
After the Court's August 26, 1994, ruling that harm associated with the Site was divisible, the United States entered into a settlement agreement with the BIC defendants that was approved by the Court. See United States v. Broderick Investment Co., No. 86-369 (D.Colo. June 26, 1995) (order approving consent decree between the United States, Colorado, and BIC defendants).[3] Pursuant to that agreement, the BIC defendants contributed $10.7 million in past response costs. See id. The agreement, however, made no provision for allocation between the western portion of the Site for which the BIC defendants and BN are jointly and severally liable and the eastern portion for which the BIC defendants alone bear responsibility. Consequently, BN and the United States dispute whether, and in what amount, any contribution required of BN should be reduced by the BIC defendants' previous contribution.
In the Superfund Amendments And Reauthorization Act of 1986, Congress provided:
A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the *1277 settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the other by the amount of the settlement.
42 U.S.C. § 9613(f)(2).
In the more common CERCLA case in which harm is not divisible, a non-settling defendant's liability, as determined at trial, is reduced by the dollar amount of prior settlements. See, e.g., O'Neil v. Picillo, 682 F.Supp. 706, 730 (D.R.I.1988), aff'd, 883 F.2d 176 (1st Cir., 1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1115, 107 L.Ed.2d 1022 (1990) (total liability for past response costs reduced by amount received in cash settlement). Here, however, the Court's prior divisibility ruling results in the novel situation that the harm for which the settling and non-settling defendants are liable is not co-extensive. By its terms, the statute provides no guidance in this situation. Moreover, the parties agree that no previous case has addressed this issue and the Court has not uncovered any precedential guidance.
BN proposes that it should receive full credit for the BIC settlement and points to three decisions by the courts of appeals. See Hess Oil Virgin Islands Corp. v. UOP, Inc., 861 F.2d 1197 (10th Cir.1988); Gulfstream III Assocs. v. Gulfstream Aerospace Corp., 995 F.2d 425 (3d Cir.1993); Singer v. Olympia Brewing Co., 878 F.2d 596 (2d Cir. 1989), cert. denied, 493 U.S. 1024, 110 S.Ct. 729, 107 L.Ed.2d 748 (1990). None of these cases, however, arises in the context of a statutory scheme that imposes strict liability and contemplates disproportionate liability for non-settling parties. See B.F. Goodrich v. Betkoski, 99 F.3d 505, 527 (2d Cir.1996). Moreover, adopting this analysis would not encourage settlement, a federal policy that is especially important in the CERCLA context. See id. Accordingly, the Court concludes that these cases do not present sufficiently analogous situations to provide meaningful guidance.
The United States, on the other hand, argues that the BIC payments should be applied against all Site response costs, and that BN's liability should be reduced only to the extent that the previous payments and full satisfaction of a judgment against BN would result in double recovery by the United States. The United States' argument, however, fails to give full effect to the Court's divisibility ruling. In that Order, the Court held that BN was not responsible for contamination on the eastern portion of the Site. Lumping together response costs and credits for both portions under the United States' proposed method probably would require BN to shoulder responsibility for some costs incurred in connection with the eastern portion. Such an unfair result is analogous to requiring a neighboring landowner to contribute merely because of geographic proximity, and should not be encouraged.
Accordingly, both parties' proposed methods of allocation must be rejected, and yet a third formula developed that serves all of the competing policies. After careful consideration, it appears that the most appropriate manner of crediting the previous settlement is to determine the percentage of total response costs attributable to the western and eastern portions, and to allocate the BIC defendants' payments in accordance with those percentages.[4] Under this formula, BN may still bear a disproportionate share of liability, and thus the policies of strict liability and promoting early settlement will be encouraged. At the same time, however, because BN's potentially disproportionate liability will be connected only with that portion of the Site for which it bears responsibility, BN will not be forced to cover costs with which it has no connection. Finally, under the Court's formula, the United States, and not BN, will be required to bear the greater part of risk that the United States might have accepted an insufficient settlement.
The Court is confident that the parties can reach a stipulation concerning the percentage of overall costs attributable to the western portion, and will enter an Order specifying the dollar amount of credits to be applied *1278 against BN's liability when this stipulation is provided. In view of the foregoing, it is
ORDERED that BN is liable for all response costs incurred in connection with remediation of the Broderick Wood Products Company site except for the following costs which are disallowed: increased costs attributable to EPA's utilization of a 10-5 cancer risk factor rather than a 10-4 factor. It is
FURTHER ORDERED that the Court reserves ruling on the issue of removal from the Site and incineration of solids during OU1. It is
FURTHER ORDERED that damages recoverable from BN shall be reduced by that portion of the BIC defendants' settlement payment that is attributable to the portion of the Site for which BN and the BIC defendants are jointly and severally liable, utilizing the formula discussed above.
NOTES
[1] Two different NCPs were in force during the Site remedial activities: the 1985 NCP, which applies to the first Record of Decision for the Site, and the 1990 NCP, which applies to all other activities. Unless otherwise noted, citations refer to the 1990 NCP.
[2] BN also argued that EPA's risk assessment was flawed because it considered both pentachlorophenol (PCP), which contains dioxins, and non-PCP related dioxins. The Court is satisfied, however, that the issue of whether PCP causes cancer independent of residual dioxin contamination is a matter of reasonable scientific disagreement, and, accordingly, this portion of EPA's risk assessment was not arbitrary and capricious. See Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1524 (10th Cir.1992).
[3] Initially, BN objected to the Consent Decree, and its execution was held in abeyance pending evaluation of BN's comments. BN later withdrew its objections. See United States v. Broderick Investment Co., No. 86-369, 1995 WL 918359 (D.Colo. Nov. 8, 1995) (approving BN's withdrawal of its objections and lifting stay on consent decree).
[4] Thus, assuming that response costs attributable to the western portion constitute 50% of overall Site response costs, BN's liability would be reduced by 50% of the $10.7 payment made by the BIC defendants, or $5,350,000.
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859 P.2d 1308 (1993)
Bob OWEN, Appellant,
v.
Bert MATSUMOTO, Assistant Classification Officer, Alaska Department of Corrections, Time Accounting Task Force, State of Alaska, Appellees.
No. S-5271.
Supreme Court of Alaska.
October 1, 1993.
Bob Owen, pro se.
Michael J. Stark, Asst. Atty. Gen., and Charles E. Cole, Atty. Gen., Juneau, for appellees.
Before MOORE, C.J., RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.
OPINION
COMPTON, Justice.
This case presents the question whether the superior court has appellate jurisdiction over a Department of Corrections (DOC) sentencing calculation. The superior court held it did not have such jurisdiction. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 21, 1992, Bob Owen submitted a letter to Bert Matsumoto, Assistant Classification Officer for DOC, explaining that DOC miscalculated his two sentences after he was resentenced in 1987.[1] Matsumoto responded that the Time Accounting Task Force determined that none of Owen's claims had merit.
Owen filed a notice of appeal in the superior court pursuant to Alaska Rules of Appellate Procedure 602(a)(2) and 602(b)(1), and AS 22.10.020(d).[2] The State moved to dismiss the appeal for lack of jurisdiction. Superior Court Judge Brian C. Shortell dismissed the appeal, stating that Owen's proper remedy for a miscalculation of his sentence was to file for post-conviction *1309 relief under Criminal Rule 35.1. This appeal followed.
II. DISCUSSION
A. STANDARD OF REVIEW
This appeal requires an interpretation of AS 22.10.020(d), which defines the superior court's appellate jurisdiction. On questions of statutory interpretation this court exercises its independent judgment. Hertz v. Carothers, 784 P.2d 659, 660 (Alaska 1990).
B. THE SUPERIOR COURT DOES NOT HAVE APPELLATE JURISDICTION OVER A DEPARTMENT OF CORRECTIONS SENTENCE CALCULATION
Alaska Statutes 22.10.020(d) provides that the superior court has jurisdiction "in all matters appealed to it from a subordinate court, or an administrative agency when appeal is provided by law." AS 22.10.020(d) (emphasis added). In Hertz, we addressed whether the superior court has jurisdiction under AS 22.10.020(d) to review a DOC administrative decision. We held that the Administrative Procedure Act, AS 44.62.010-.650, does not provide an appeal from a DOC administrative decision. Hertz, 784 P.2d at 660. Nor did we find any other statutory provision providing for superior court review of a DOC administrative decision. Id. Thus there is no appeal provided for by law conferring jurisdiction on the superior court to hear Owen's appeal.
Nevertheless, Owen argues that his case falls under the exception created by McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975), and Department of Corrections v. Kraus, 759 P.2d 539 (Alaska 1988), which concluded that a superior court may exercise appellate review of inmate disciplinary proceedings raising fundamental constitutional questions. Owen claims that the time calculation error has resulted in his serving a portion of his 1978 sentence twice, thereby violating the prohibition against multiple punishment in article I, Section 9 of the Alaska Constitution. Alaska Const. art I, § 9; see U.S. Const. amend. V.
The State argues that a superior court's appellate jurisdiction over DOC decisions is limited to major disciplinary decisions which involve issues of constitutional magnitude. In Kraus, we provided several reasons for allowing appellate review of major disciplinary proceedings where issues of constitutional magnitude are raised:
First, in McGinnis we referred to the judicial review of major disciplinary proceedings as an appeal. Second, we agreed with that aspect of the superior court decision in McGinnis which stressed that the review would be based on the tape recording of the disciplinary proceedings. A review on the record, as distinct from the de novo reception of evidence, is characteristic of appeals. Third, this court has consistently shown a preference for reviewing adjudicative decisions of an administrative agency by means of an appeal... . Fourth, appellate review should be less expensive and time consuming than the proceedings suggested by the state, each of which entails discovery and evidentiary hearings.
Kraus, 759 P.2d at 540 (citations and footnotes omitted).
The State argues that in Owen's case, none of the reasons we gave in Kraus for permitting review by an administrative appeal is present. Specifically, the State argues that there is an inadequate record on which to provide review; therefore, the proper procedure for review of Owen's claim is pursuant to a request for post-conviction relief under Criminal Rule 35.1.[3]
*1310 We agree. However, we do not hold that judicial review of DOC administrative decisions is limited to disciplinary actions. Any alleged violation of fundamental constitutional rights must be afforded judicial review. However, Owen has not shown that review by administrative appeal is the proper avenue for judicial review of an alleged miscalculation of his sentence. Owen has a right to have his sentence calculation reviewed, but not by way of appeal to the superior court.
III. CONCLUSION
The superior court was correct in determining that this case does not fit the McGinnis and Kraus exceptions for judicial review by administrative appeal of major disciplinary proceedings involving fundamental constitutional rights. DOC calculations of sentences are not adjudicative proceedings producing records reviewable on an administrative appeal. The dismissal of Owen's appeal for lack of appellate jurisdiction is AFFIRMED.
NOTES
[1] In 1978, Superior Court Judge S.J. Buckalew sentenced Owen to 13 years with 3 years suspended for armed robbery. In 1983 Judge Buckalew sentenced Owen on a second robbery charge to a presumptive 15 years. In November 1987 Judge Buckalew resentenced Owen on the 1978 and 1983 cases because a prior suspended imposition of sentence, that did not result in a conviction of record, had been improperly used to enhance Owen's sentences. Judge Buckalew reduced Owen's 1978 sentence to 7 years and the 1983 sentence to a presumptive 10 years. Judge Buckalew did not clarify whether Owen had satisfied his 1978 sentence with the time that he had served as of the date of resentencing.
[2] Owen has filed an appeal of the superior court's refusal to clarify his sentence. Owen v. State, No. A-4708 (Alaska App., October 30, 1992). Owen also filed a civil action for declaratory relief that his sentence was miscalculated. Owen v. Rupp, No. 3PA-92-1353 Civ. (Alaska Super. December 7, 1992) However, the only question before the court at this time is whether the superior court has appellate jurisdiction over DOC calculations of sentences.
[3] Criminal Rule 35.1 reads in part:
Post-conviction Procedure.
(a) Scope. Any person who has been convicted of, or sentenced for, a crime and who claims:
(1) that the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of Alaska;
....
(5) that his sentence has expired, his probation, parole or conditional release have been unlawfully revoked, or he is otherwise unlawfully held in custody or other restraint;
....
(7) ...; may institute a proceeding under this rule to secure relief.
(b) Not a substitute for Remedies in Trial Court Replaces All Other Remedies for Challenging the Validity of a Sentence. This remedy is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of direct review of the sentence or conviction. It is intended to provide a standard procedure for accomplishing the objectives of all of the constitutional statutory or common law writs.
Criminal Rule 35.1(b) does state that it "Replaces All Other Remedies for Challenging the Validity of a Sentence." The question whether Criminal Rule 35.1 is the only proper procedure is not before the court. We do note that Owen is not required to wait until he has been imprisoned longer than he should have been in order to challenge the sentence calculation under Criminal Rule 35.1. The sentence, if miscalculated, violates Owen's constitutional rights from the time of the calculation and he is entitled to have it corrected.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Duff*
BUCHANAN GENERAL HOSPITAL AND
SECURITY INSURANCE COMPANY
OF HARTFORD
MEMORANDUM OPINION **
v. Record No. 1770-01-3 PER CURIAM
OCTOBER 30, 2001
FRANCES K. HUNT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ramesh Murthy; Lisa Frisina Clement; Penn
Stuart, on brief), for appellants.
(D. Edward Wise, Jr.; Arrington, Schelin &
Herrell, P.C., on brief), for appellee.
Buchanan General Hospital and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that employer failed to
prove that (1) Frances K. Hunt unjustifiably refused to
cooperate with Dr. Thomas Hulvey's independent medical
examination; and (2) Hunt was able to return to her pre-injury
work as of May 23, 2000. Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
*
Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
**
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
merit. Accordingly, we summarily affirm the commission's
decision. See Rule 5A:27.
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,
464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572
(1986)). Unless we can say as a matter of law that employer's
evidence sustained its burden of proof, the commission's findings
are binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
I. Unjustified Refusal to Cooperate
Code § 65.2-607(B) provides as follows:
If the employee refuses to submit
himself to [a medical examination paid for
by employer] or in any way obstructs such
examination requested by and provided for by
the employer, his right to compensation and
his right to take or prosecute any
proceedings under this title shall be
suspended until such refusal or objection
ceases and no compensation shall at any time
be payable for the period of suspension
unless in the opinion of the Commission the
circumstances justify the refusal or
obstruction.
In refusing to suspend Hunt's benefits, the commission
found as follows:
- 2 -
There is no definite statement in
[Dr. Hulvey's] report establishing that Hunt
intentionally failed to cooperate.
Dr. Hulvey advised that Hunt only moved her
neck a few degrees, did not bring her hands
above eye-level, bent forward only a few
degrees, and refused to hyperextend her
back. Yet, he commented that while she
would not comply, she also "seemed to be
unable to cooperate" (emphasis added).
Clearly, Dr. Hulvey concluded that Hunt's
physical status rendered her unable to
perform some of the requested movements.
Accordingly, we are not persuaded that
Hunt's actions were an unjustifiable refusal
to cooperate. Dr. Hulvey recognized that
Hunt's physical limitations affected her
participation in, and cooperation with, the
examination.
The commission's findings are amply supported by a review
of Dr. Hulvey's medical records. Dr. Hulvey noted Hunt's
failure to perform certain movements by opinion that she "could
not or would not comply." This does not establish that she was
feigning her inability to cooperate or intentionally refusing to
cooperate. Moreover, although Dr. Hulvey was less than
satisfied with the extent of his examination, he was able to
obtain sufficient information to draw conclusions regarding
Hunt's condition and the extent of her disability. Credible
evidence of Hunt's impairments is documented in the medical
records of Drs. Christa U. Muckenhausen, James W. Templin, and
Thomas W. Kramer. Based upon this record, we cannot find as a
matter of law that employer's evidence sustained its burden of
- 3 -
proving that Hunt unjustifiably refused to cooperate with Dr.
Hulvey's examination.
II. Return to Pre-Injury Work
In ruling that employer failed to prove that Hunt was
capable of returning to her pre-injury work as of May 23, 2000,
the commission found as follows:
Dr. Muckenhausen, Hunt's treating physician,
has followed her care for an extended period
of time. Her numerous examinations revealed
objective findings, such as muscle spasms
and tenderness to palpitation. Based on
these evaluations and positive MRI scans,
Dr. Muckenhausen repeatedly opined that Hunt
could not return to her pre-injury
employment. Dr. Templin, who has also
treated Hunt on several occasions, supports
the findings and conclusions of
Dr. Muckenhausen. In August and October
1999, he greatly restricted her activities.
Dr. Templin's April 2000 examination found
cervical tenderness and tightness, back
tenderness and positive straight leg raises.
Lastly, Dr. Hulvey even indicated that Hunt
was unable to return to work. He
recommended that she attend a rehabilitation
center to return her to gainful employment.
Dr. [Jim C.] Brasfield is the only
physician to unconditionally release Hunt to
work, from a physical perspective. We do
not find the report of a physician who
examined her on one occasion to be as
persuasive as that of a treating physician.
Significantly, Dr. Brasfield also noted that
a structured rehabilitation program should
have been provided to Hunt.
We are not convinced by the evidence
presented that Hunt has misrepresented her
condition to Drs. Muckenhausen and Templin
such as to discount their opinions. In
fact, Dr. Muckenhausen noted Hunt's
- 4 -
cooperation and disagreed that she was
malingering. Further, while Dr. [Paul R.]
Kelley opined that [Hunt] was not
psychiatrically impaired, Dr. [David L.]
Forester has continued to treat her for
psychiatric problems, including depression.
Thus, we are not persuaded that the claimant
was released to return to her pre-injury
work, from a psychiatric perspective.
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991). Moreover, "[q]uestions raised by
conflicting medical opinions must be decided by the commission."
Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d
231, 236 (1989). We also note "'[t]he general rule . . . that
when an attending physician is positive in his diagnosis . . . ,
great weight will be given by the courts to his opinion.'"
Pilot Freight Carriers, 1 Va. App. at 439, 339 S.E.2d at 572
(citations omitted).
The commission weighed the medical evidence and accepted
the opinions of the treating physicians, Drs. Muckenhausen and
Templin, while rejecting the contrary opinions of the
independent medical examiners, Drs. Brasfield and Kelley.
Because the medical evidence was subject to the commission's
factual determination, we cannot find as a matter of law that
employer's evidence sustained its burden of proving that
- 5 -
claimant was fully capable of performing her pre-injury work as
of May 23, 2000.
For these reasons, we affirm the commission's decision.
Affirmed.
- 6 -
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411 F.2d 1067
In the Matter of the Grand Jury and Susan Marie PARKER, Appellant.
No. 168-69.
United States Court of Appeals Tenth Circuit.
June 13, 1969.
Walter L. Gerash, of Gerash & Kaiser, Denver, Colo., for appellant.
James R. Richards, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for appellee.
Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges.
LEWIS, Circuit Judge.
1
This is an appeal from an order of the United States District Court for the District of Colorado holding appellant Susan Marie Parker in civil contempt for refusing to obey an order of the court directing her to answer questions propounded to her during a grand jury inquiry into alleged violations of 18 U.S. C. § 2153, sabotage or destruction of war material and war utilities. The investigation was precipitated by the destruction of public service towers in Denver and the surrounding area. As part of the order she was committed to the custody of the attorney general until such time as she answers the questions and purges herself of the contempt. The order did not place a time limit on said custody; however, it is clear that "once the grand jury ceases to function, the rationale for civil contempt vanishes" and she must be released. Shillitani v. United States, 384 U.S. 364, 372, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622.
2
Appellant-contemnor pursuant to a subpoena made an appearance before the grand jury on April 1, 1969; however, except for answering the preliminary identification questions, she on the advice of her attorney, who was present outside the jury room and with whom she consulted after each question or series of questions, refused to answer all other questions propounded to her on the grounds that her answers might tend to incriminate her. Upon such refusal the government pursuant to 18 U.S.C. § 25141 petitioned the district court for an order granting her immunity and instructing her to respond. The court after holding a hearing issued the requested order. The order dated April 2, 1969 in its pertinent part reads:
3
"[T]he witness is not excused from testifying or producing evidence on the ground that the testimony or evidence required of her may tend to incriminate her or subject her to a penalty or forfeiture, and it is further
4
ORDERED that the witness shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which she is compelled, after having claimed her privilege against self-incrimination, to testify or produce evidence, and no testimony or evidence compelled under this order shall be used in any criminal proceeding against her in any court, state or federal, excepting prosecutions for perjury or contempt committed while giving testimony or producing evidence under the compulsion of this order."
5
Following entry of the order the grand jury reconvened and appellant was again questioned where, after stating that she understood the court's order compelling testimony and granting immunity, she again refused to testify. Appellant was then brought before the district court for the second time where, again being given the opportunity to answer the questions and again refusing to do so, she was found to be in civil contempt of the court.
6
The order, which was as extensive as the court had the power to grant, specifically granted immunity from both federal and state prosecution and accordingly adequately protected her against the danger of self-incrimination in all courts within the United States. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L. Ed.2d 678; Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249; United States v. Coplon, 6 Cir., 339 F.2d 192. Appellant in her appeal to this court concedes this, as indeed she must, but argues that her refusal to testify was justified due to the danger of incrimination in a foreign jurisdiction, Canada. She contends that certain of the questions propounded to her,2 if answered, would furnish a link in a chain of evidence needed to prosecute her for an extraditable Canadian crime. At the onset it is important to note that appellant not only refused to answer those questions which if answered in the affirmative would place her in Canada and thereby have some potential impact on the risk of prosecution for crimes committed therein but all of the questions put to her. And even if it could be said that answers to the questions inquiring into a trip by her to Canada would incriminate her in Canada, which for reasons shortly to be spelled out we feel it could not, answers to the questions directly relating to the destruction of public service towers in Denver and the surrounding area and from which she was granted complete immunity within the United States could not present a danger of incrimination in either the United States or Canada, and her refusal to answer said questions was clearly not justified. It cannot be inferred from the mere fact that an individual was involved in a crime in one country that he was involved in a like or related crime in another country.
7
Rule 6(e),3 Fed.R.Crim.P., with an exception not applicable herein, prevents disclosure of matters occurring before the grand jury unless otherwise ordered by a federal court and since for a court to so order under the circumstances presented in the subject case would defeat one of the purposes for grand jury secrecy, i. e. the encouragement of free disclosure by those who have information of crimes, United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077, as well as the court's "promise" of immunity, it cannot be assumed that a court would grant such an order or accordingly that there is a danger of incrimination. By virtue of the application of Rule 6(e) any evidence, inculpatory or otherwise, related by appellant during the grand jury proceeding would be unavailable to the Canadian government in either an extradition proceeding in the United States or in a criminal proceeding in Canada.
8
The protection offered by the self-incrimination clause of the fifth amendment although fundamental to our concept of justice "must be confined to instances where the witness has reasonable cause to apprehend danger [of incrimination] from a direct answer. [citations omitted.] The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself." Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118.
9
However the trial court did not specifically find that particular questions propounded to appellant would not tend to incriminate her in Canada nor that the particular circumstances of this case would provide procedural safeguards against incrimination. Consequently appellant argues that the impact of the court's coercive order is premised on the proposition that the fifth amendment provides no shelter for appellant against incrimination in a foreign jurisdiction when applied to the provisions of 18 U.S.C. § 2514. We agree that in the present posture of this case such is, indeed, the effect of the trial court's ruling and order. And we unhesitatingly hold that such ruling is correct.
10
It is true that Mr. Justice Goldberg, writing for the majority in Murphy, supra, traced the history and importance of the privilege against self-incrimination and in so doing indicated approval of some early English cases where the privilege was thought applicable to a "foreign jurisdiction" or "country." But the Justice's reference to such cases was simply by way of argumentative analogy to this nation's state-federal relationship and carries no further persuasion. The fifth amendment was intended to protect against self-incrimination for crimes committed against the United States and the several states but need not and should not be interpreted as applying to acts made criminal by the laws of a foreign nation. The ideology of some nations considers failure itself to be a crime and could provide punishment for the failure, apprehension, or admission of a traitorous saboteur4 acting for such a nation within the United States. In such a case the words "privilege against self-incrimination," engraved in our history and law as they are, may turn sour when triggered by the law of a foreign nation.
11
Affirmed.
Notes:
1
18 U.S.C. § 2514 provides that:
"Whenever in the judgment of a United States attorney the testimony of any witness, or the production of books, papers, or other evidence by any witness, in any case or proceeding before any grand jury or court of the United States involving any violation of this chapter or any of the offenses enumerated in section 2516, or any conspiracy to violate this chapter or any of the offenses enumerated in section 2516 is necessary to the public interest, such United States attorney, upon the approval of the Attorney General, shall make application to the court that the witness shall be instructed to testify or produce evidence subject to the provisions of this section, and upon order of the court such witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. No such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except in a proceeding described in the next sentence) against him in any court. No witness shall be exempt under this section from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this section."
2
"Q. Did you and those three other persons after January 31, 1969, travel to Canada?"
"Q. Were the four of your [sic] present in Ravelstock, British Columbia, on February 6, 1969?"
3
Rule 6(e) in its pertinent part reads:
"Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. * * *"
4
We are in no way referring by this phrase or this part of the opinion to the appellant as an individual. Appellant is a young girl whose conduct is inexplicable from the record and we have no way to know her subjective reasoning
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895 N.E.2d 702 (2005)
357 Ill. App.3d 1103
WOOD
v.
INDUSTRIAL COM'N.
No. 4-04-0245WC.
Appellate Court of Illinois, Fourth District.
June 30, 2005.
Affirmed.
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664 So.2d 877 (1995)
Charles JOHNSON, et al.
v.
ALABAMA POWER COMPANY.
ALABAMA POWER COMPANY
v.
Charles JOHNSON, et al.
1921696, 1921722.
Supreme Court of Alabama.
May 19, 1995.
Rehearing Denied July 14, 1995.
Michael J. Evans and Thomas W.H. Buck of Longshore, Evans & Longshore, Birmingham, for appellants (Johnson et al.).
John P. Scott, Jr. and Alan T. Rogers of Balch & Bingham, Birmingham, Oakley Melton, Jr. of Melton, Espy, Williams & Hayes, Montgomery, Hewitt L. Conwill of Conwill & Justice, Columbiana, Frank C. Ellis, Jr. of Wallace, Ellis, Head & Fowler, Columbiana, for appellee (Alabama Power Co.).
PER CURIAM.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R.App.P.
MADDOX, ALMON, KENNEDY, INGRAM, COOK, and BUTTS, JJ., concur, in case 1921696.
HOUSTON, J., concurs specially, in case 1921696.
SHORES, J., dissents, in case 1921696.
MADDOX, ALMON, SHORES, HOUSTON, INGRAM, and COOK, JJ., concur, in case 1921722.
KENNEDY and BUTTS, JJ., dissent, in case 1921722.
*878 HOUSTON, Justice (concurring specially).
I concur; however, I write specially to address Justice Shores's dissent.
I must first comment on and agree with Justice Shores's statement regarding a principle of statutory construction that was most recently applied in Justice Maddox's dissent in the answer to the certified question concerning absentee ballots. See Roe v. Mobile County Appointment Board, [Ms. 1940461, March 14, 1995] ___ So.2d ___ (Ala.1995) (Maddox, J., dissenting). It is the settled law, as I wrote, with eight Justices concurring, in answer to a certified question, in IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344, 346 (Ala.1992):
"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says."
This rule of statutory construction is not relevant in this case, because this case does not turn upon the plain language, or, for that matter, upon any language, of Ala.Code 1975, § 5-19-11 (as originally enacted). Interestingly enough, § 5-19-11 is styled "Affidavit to be filed by creditor before bringing action." This was amended by Ala. Acts 1990, Act No. 90-384; and, as amended, this section is styled "Affidavit to be filed by creditor before bringing action; consequences of certain violations." In 1990, for the first time, the legislature proscribed remedies for violation of the rights it had created 19 years before.
The Legislature enacted the "Mini-Code" in 1971, 70 years after the Constitution of 1901 had been ratified, giving by that legislation certain specific rights to debtors in consumer credit transactions. However, the Legislature provided no specific remedy in the Mini-Code to consumers/debtors seeking to enforce their legislatively created rights. Therefore, in Derico v. Duncan, 410 So.2d 27 (Ala.1982), this Court applied in a Mini-Code case the general common law rule that contracts made in derogation of a regulatory licensing statute are void and, thus, unenforceable. In so doing, this Court afforded debtors a specific remedy, because the Legislature had provided no remedy. The common law rule applied in Derico, however, has no application within the context of the present action, which was filed on September 26, 1990, because of the Legislature's April 17, 1990, amendment to Ala.Code 1975, § 5-19-11. See Ala. Acts 1990, No. 90-384. The revised § 5-19-11, in subsection (b), specifies that a debtor may recover only for actual damage sustained by the debtor as a result of the creditor's violation of the Mini-Code. Subsection (b) makes it very clear that the judicially enforced common law remedy of voiding an entire consumer credit transaction is no longer available in cases such as this one. See, also, In re Crotzer, 147 B.R. 252 (Bankr.N.D.Ala.1992). The last sentence of subsection (b) states that a debtor may be compensated for the "actual damage" sustained as a result of the creditor's failure to comply with "any requirement imposed under this chapter." The "chapter" referred to is Chapter 19 (consisting of 31 sections) of Title 5, governing consumer credit transactions. Subsection (b) is applicable in cases of this kind unless a "specific remed[y]" is otherwise provided in Chapter 19 to a debtor for the particular violation involved. Neither § 5-19-22, the licensing provision that was violated in this case; § 5-19-29, which authorizes the state banking superintendent to seek an injunction to enforce the licensing requirements; nor § 5-19-30, which deals with the criminal penalties applicable to creditors operating in violation of the licensing requirements, provides for such a "specific remed[y]" to the debtor. Therefore, because Alabama Power Company was not licensed under § 5-19-22 to make consumer loans before June 23, 1989, it had no statutory authority to charge interest in connection with the financing of its heat pumps or other merchandise sold before that date. The only actual damage sustained by the plaintiffs as a result of the licensing violation was the contractual requirement that they pay interest on their loans. Thus, the trial court's order requiring a refund of the interest paid by the plaintiffs to Alabama Power Company, but otherwise leaving intact the plaintiffs' contractual obligations to pay for the merchandise purchased, was proper.
*879 I also note that subsection (b) of § 5-19-11 is applicable in cases, such as this one, filed after the effective date of April 17, 1990, even if the cause of action involves a Mini-Code violation that took place before the amendment. Section 4 of Act No. 90-384 provides:
"This Act shall become effective upon its passage and approval by the Governor or upon its otherwise becoming a law, but shall not apply to claims alleging violations of this Chapter which have been asserted in litigation pending as of the effective date of this Act."
Subsection (b) of § 5-19-11 did not create, enlarge, diminish, or destroy any vested, substantive rights; instead, it cured a legislatively perceived defect in the Mini-Code with respect to the remedies available in cases involving Mini-Code violations. The Legislature created specific rights for debtors when it enacted the Mini-Code, and it did nothing more in amending § 5-19-11 than to provide a specific statutory remedy to enforce those rights. Subsection (b) falls within this Court's definition of remedial legislation and operates retroactively, absent clear language to the contrary. See Ex parte Burks, 487 So.2d 905 (Ala.1985). The Act contains no prohibition against retroactive application. To the contrary, § 4 of the Act indicates that the Legislature clearly contemplated application of the new remedy provision in cases other than those pending on April 17, 1990.
SHORES, Justice (concurring in case 1921722 and dissenting in case 1921696).
I respectfully dissent from that portion of the majority's summary affirmance that affirms the trial court's decision not to follow the common law rule of Derico v. Duncan, 410 So.2d 27 (Ala.1982), and I concur with that portion of the summary affirmance that affirms the trial court's holding that the class members are entitled to recover interest payments they have made to Alabama Power Company ("APCo") and its order enjoining APCo from collecting interest on the loans.
The lawsuit was filed as a class action on September 26, 1990, on behalf of all persons who, before June 23, 1989, had become financially obligated to APCo when the company financed for them the purchase of heat pumps and other merchandise, without first obtaining a license from the Alabama State Banking Department as required under § 5-19-22, Ala.Code 1975, a portion of the Mini-Code. The class members sought to void the debt agreements with APCo and to obtain a refund of the principal and interest they have paid APCo.
The trial court held a hearing on cross motions for summary judgment; the motions were supplemented with briefs and oral arguments. On June 14, 1993, the trial judge entered a partial summary judgment in favor of the class members and a partial summary judgment in favor of APCo. He held that the amendment to § 5-19-11(b) of the Mini-Code overruled Derico v. Duncan by implication, and, thus, that the class members were liable for the principal on the contracts, but that APCo must refund all interest paid by the class members. The class members appealed; APCo cross-appealed.
The majority summarily affirms the trial court's judgment. I dissent in part, because I believe that the rule of Derico v. Duncan controls in the present case and voids the contracts. Derico v. Duncan addressed a certified question from the United States District Court for the Middle District of Alabama. The question was:
"Does defendant's failure, which was not willful, to obtain a license according to Section 5-19-22 affect plaintiff's obligation under the loan contract between plaintiff and defendant, and if so, to what extent?"
410 So.2d at 28. We answered:
"We conclude that the provisions of Code 1975, § 5-19-1 et seq., `Consumer Finance,' known collectively as the Mini-Code, are regulatory in nature and are for the protection of the public, specifically, the consumer/debtor.
"In this context, then, we have examined the Mini-Code in the light of applicable Alabama law and we hold that contracts made in violation of the requirements of the Mini-Code are null, void, and unenforceable as a matter of public policy. Further, we hold that, notwithstanding Defendant's non-willfulness in failing to obtain a license to engage in the business of making consumer loans, that failure was in *880 direct violation of § 5-19-22(a). Therefore, that portion of Plaintiff's indebtedness represented by the loan (as distinguished from the debt on the contract to repair) is void, including both the principal and the interest...."
410 So.2d at 31.
Derico v. Duncan is not an anomaly in this Court's jurisprudence, but is firmly rooted in almost a century of unbroken precedent, because it follows the common law rule that contracts with an unlicensed person are void, if the person was required to have a license for the protection of the public. See: Edwards v. Farm Bureau Mut. Cas. Ins. Co., 453 So.2d 746 (Ala.Civ.App.1983), appeal after remand, 509 So.2d 232, 235-36 (Ala.Civ. App.1986), in which the Court of Civil Appeals held that a failure to comply with § 5-19-22 of the Mini-Code rendered the note, as well as the underlying subrogation obligation, void.
The trial court in the present case recognized the rule of Derico v. Duncan; however, it concluded that it was not "duty bound to follow Derico under the doctrine of stare decisis," because of the 1990 amendment to § 5-19-11, part of the Mini-Code. I believe that the trial court erred as a matter of law in ruling that the 1990 amendment to § 5-19-11 implicitly overruled Derico. Section 5-19-11, both as it originally read, and as amended, by its plain language, applies only to the procedural affidavit requirements and remedies available to a creditor who sues for collection on a debt. In amending this section, the Alabama Legislature did not, intentionally or unintentionally, change the policy of the Mini-Code and emasculate its licensing provision.
The rule of Derico v. Duncan is still alive and well: "Indeed, as we have always held to be the law in Alabama, whenever regulation and protection are the goal of a statute, contracts made in derogation of that statute are null, void, and unenforceable." 410 So.2d at 31. It is not disputed that in this case APCo had no license under § 5-19-22(a) to engage in the business of making consumer loans at the time it entered into such contracts with the class members. Therefore, I would hold that the class members are entitled to a refund of both the principal and the interest paid on these void contracts.
BUTTS, Justice (concurring in part and dissenting in part).
I concur in the majority's summary affirmance of the trial court's judgment insofar as that judgment recognized that the common law rule of Derico v. Duncan, 410 So.2d 27 (Ala.1982), is no longer applicable to entirely void the plaintiffs' consumer loans with Alabama Power Company ("APCo"). However, I respectfully dissent from the majority's action affirming that portion of the trial court's judgment holding that the plaintiffs are entitled to recover interest payments they have made to APCo and enjoining APCo from collecting interest on the loans.
The plaintiffs in this class action sought a judgment from the circuit court declaring that, because APCo was not licensed under Alabama law to make consumer loans when it made such loans to the plaintiffs, the plaintiffs' loan contracts with APCo are void and unenforceable. The plaintiffs requested that APCo be required to refund to them all principal and interest payments made to APCo on the loans; the plaintiffs also sought to keep the electric heat pumps they had purchased with the loan proceeds. The plaintiffs did not allege, and they have never contended, that APCo violated any provision of the consumer finance codethe "Mini-Code"other than Ala.Code 1975, § 5-19-22, its licensing provision. Until June 23, 1989, APCo had merely failed to obtain a license to make consumer loans; obtaining a license includes paying minimal application and license fees.
Under the common law rule of Derico relied on by Justice Shores in her opinion, concurring in part and dissenting in part, a violation of the Mini-Code licensing provision would entirely void the plaintiffs' consumer loan contracts with APCo. However, I believe that the trial court correctly held that the legislature's revision of § 5-19-11(b), a portion of the Mini-Code, by Ala.Acts 1990, Act No. 90-384, abrogated the harshness created by Derico's common law remedy of rendering such contracts void and unenforceable simply because the creditor had violated the *881 licensing provision. See In re Crotzer, 147 B.R. 252 (Bankr.N.D.Ala.1992).
Act No. 90-384, which revised several provisions of the Mini-Code, applies to all cases filed after April 17, 1990. Thus, the revised § 5-19-11(b) clearly applies to this case, which was filed on September 26, 1990. That section provides a remedy for violations of the Mini-Code where the provision violated, such as § 5-19-22, provides no specific remedy. Section 5-19-11(b) states: "Any creditor who fails to comply with any requirement imposed under this chapter with respect to any person is liable to such person for the actual damage sustained by such person as a result of this failure." (Emphasis added.)
Under this statutory remedy the plaintiffs in this action are entitled to compensation for the actual damage suffered, claimed, and proven by them as a result of the fact that APCo did not have a license to make consumer loans when it made consumer loans to the plaintiffs. It is well-settled law that a party seeking to recover damages must plead and prove entitlement to those damages. Marcus v. Lindsey, 592 So.2d 1045 (Ala.1992); Segars v. Reaves, 567 So.2d 249 (Ala.1990); Johnson v. Harrison, 404 So.2d 337 (Ala. 1981); Hartford Accident & Indemnity Co. v. Cosby, 277 Ala. 596, 173 So.2d 585 (1965). Further, plaintiffs are generally competent to testify as to their damages. Marcus, supra; Segars, supra. However, the record in this case reveals that the class representatives claimed no injury as a result of APCo's violation of the Mini-Code's licensing provision. The class representatives readily admitted in deposition testimony that they have suffered no real and present damage.
Class representative Charles Johnson testified as follows:
"[APCo'S ATTORNEY]: All right, sir. In what way did [APCo's] not having a license damage or injure you, in your judgment?
"[MR. JOHNSON]: Well, right at the present, it hasn't affected me at present.
"[APCo'S ATTORNEY]: Okay.
"[MR. JOHNSON]: But no man can look into the future and predict what is going to happen. See, they took a mortgage on my house, second mortgage. Okay. And if for some reason or another, I fail to abide by this contract, then somebody is going to foreclose the mortgage on my home. Am I right? Okay. I feel like if they can do this, then I think that they should have been licensed within the law to do this.
". . . .
"[APCo'S ATTORNEY]: All right, sir. Is there anything else that you can tell me in the way in which you contend you have been damaged as a result of the company's failure, as you have contended it, to have a license under the Mini-Code.
"[MR. JOHNSON]: Repeat that again.
"[APCo'S ATTORNEY]: Can you, other than what we have already talked about, tell me any other way in which you contend you have been damaged as a result of your contention that the Power Company didn't have and should have had a license under the Mini-Code to arrange this financing for you?
"[MR. JOHNSON]: No, sir."
The testimony of the second class representative, Doris Van Tassell, shows even more clearly that the plaintiff class suffered no actual damage or loss as a result of APCo's violation of the Mini-Code's licensing provision.
"[APCo'S ATTORNEY]: Let me focus on the lawsuit now. Are you claiming that you have been damaged in some way by Alabama Power Company?
"[MS. VAN TASSELL]: Well, I think that Alabama Power has violated a law concerning the Mini-Code and that they were not licensed to grant consumer loans.
"[APCo'S ATTORNEY]: Are you claiming that you have been damaged in some way by that?
"[MS. VAN TASSELL]: I don't really know how to answer that.
"[APCo'S ATTORNEY]: If you had financed the heat pump with someone who was licensed, do you see or is it your judgment sitting here today that you would have somehow paid less or been better off in some way, and, if so, please explain.
*882 "[MS. VAN TASSELL]: Well, I know that I was not enlightened, I did not know that they were not licensed at the time. But if I were to do a service for someone and I needed a license, I would expect to be sure that I had it.
"[APCo'S ATTORNEY]: Do you feel that you lost money because of that? In other words, what have you lost because of the licensing violation that you have alleged.
"[MS. VAN TASSELL]: Moneywise, I haven't lost anything.
"[APCo'S ATTORNEY]: What have you lost besides money? Has there been something else?
"[MS. VAN TASSELL]: I don't think that relates to what towhether I have lost anything or not, to this subject. I don't feel like it is relating to the issue here.
"[APCo'S ATTORNEY]: Have you lost anything as a result of the licensing violation that you have alleged whether or not it relates, just
"[MS. VAN TASSELL]: Oh, no, I haven't lost anything.
"[APCo'S ATTORNEY]: What are you seeking in the lawsuit?
"[MS. VAN TASSELL]: Well, I am seeking to represent a group of people who have received loans due to the same fact that I have and they didn't know that Alabama Power was not licensed.
"[APCo'S ATTORNEY]: Do you know, and not ... what you might guess, but do you know whether any of those people you seek to represent have lost anything because of that violation you have alleged, whether it is money or something else?
"[MS. VAN TASSELL]: At this time, I don't know."
The class representatives were clearly unable to articulate any showing of actual damage, as required by § 5-19-11(b), which provides the only remedy available to them for a violation of the Mini-Code's licensing provision. Accordingly, I would hold that APCo's consumer loan contracts with the plaintiffs are not void and that APCo is not liable to the plaintiffs for money damages.[1]
KENNEDY, J., concurs.
NOTES
[1] This ruling would not open the flood gates for unlicensed consumer finance creditors; § 5-19-29, a part of the Mini-Code, authorizes the state banking superintendent to bring an action seeking an injunction restraining a creditor from doing business without a license, and § 5-19-30 authorizes the superintendent to seek criminal sanctions against creditors who do business without a license.
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605 N.E.2d 1174 (1993)
Neil F. SANDLER, Appellant-Defendant,
v.
Paul D. GILLILAND, Appellee-Defendant, and Anthony Wayne Bank, Successor in Interest by Merger with Summit Bank, Appellee-Plaintiff.
No. 02A05-9206-CV-208.
Court of Appeals of Indiana, Fifth District.
January 11, 1993.
Transfer Decided March 24, 1993.
*1175 Thomas J. Galanis, Beckman, Lawson, Sandler, Snyder & Federoff, Fort Wayne, for appellant-defendant.
A. Dale Bloom, Suzan L. Rutz, Bloom, Bloom, More and Miller, Fort Wayne, for appellee.
BARTEAU, Judge.
Neil Sandler appeals the trial court's garnishment order in favor of Anthony Wayne Bank (the "Bank"). Sandler raises two issues which we consolidate and restate as whether a judgment creditor of one spouse can attach and garnish marital assets held in an escrow account established by a trial court pending an order of property division in a marital dissolution action.
We affirm in part, reverse in part, and remand with instructions.[1]
FACTS
The Bank obtained a judgment in the Allen Superior Court against Paul Gilliland for payment of a note executed by him. On December 27, 1991, the Bank filed a petition for garnishment order naming Sandler as a garnishee defendant. Sandler is the trustee of an escrow account established by order of the Allen Superior Court, Family Relations Division ("Family Court"), pursuant to Gilliland's divorce proceedings in the Family Court. The escrow account was established to receive the proceeds from the sale of Gilliland's interest in FAB-Weld, Inc. Sandler was named as trustee of the escrow account and ordered to disburse funds from the account to Gilliland's wife as maintenance until final disposition of the marital assets. Sandler was *1176 also ordered to pay wife's attorney fees from the escrow account. It is undisputed that Gilliland's interest in FAB-Weld is a marital asset and that the judgment in favor of Bank was against Gilliland individually. The Family Court has not yet entered an order disposing of the marital property and while it is not clear from the record how much FAB-Weld still owes Gilliland, it is apparent that future payments are still to be made. At the time of these proceedings, the escrow account held about $30,000.00. On May 18, 1992, the Allen Superior Court granted Bank's order for garnishment against Sandler in the amount of $29,942.42.
DISCUSSION
Sandler first contends that the Allen Superior Court did not have jurisdiction over the escrow account because it is a marital asset under the exclusive jurisdiction of the Family Court. We agree that the Family Court is given exclusive jurisdiction over the rights in the marital assets of the parties to the dissolution proceeding. Anderson v. Anderson (1979), Ind. App., 399 N.E.2d 391. However, the case before us does not raise this concern because the Allen Superior Court did not attempt to invade the Family Court's jurisdiction over the division of marital assets between the Gillilands.
What is brought into question is whether the Allen Superior Court can interfere with the escrow account established by and in the custody of the Family Court. This is a situation similar to the conflict in jurisdiction between a federal and state court where one court has taken constructive possession of the res of a lawsuit. As between state and federal courts the court whose jurisdiction is first invoked by the filing of a suit is treated as having constructive jurisdiction of the res to the exclusion of other courts. Barrett v. International Underwriters, Inc. (7th Cir.1965), 346 F.2d 345. This does not mean, however, that all other courts are precluded from deciding every question which might concern the property involved. Id. Other courts are merely unable to render a judgment or decree which will interfere with the constructive possession of the court which first took jurisdiction. Id.
Thus, in Barrett the Seventh Circuit held that the federal district court properly declared that the judgment creditor's levy of execution created a lien on the funds owned by the judgment debtor and held by the garnishee defendant bank even though the judgment debtor was in liquidation proceedings in state court and the state court had ordered the Department of Insurance to take possession of the judgment debtor's assets. The creation of the lien did not interfere with the state court's jurisdiction over the assets because the federal court specifically recognized that the assets were subject to state court supervision and refused to grant relief to the judgment creditor beyond declaring the validity and time of attaching of the execution liens. Id.
Here, the Allen Superior Court went too far. As in Barrett the Allen Superior Court did not interfere with the Family Court's jurisdiction over the escrow account to the extent that the Superior Court declared a valid lien had attached to Gilliland's interest in the account. However, by ordering garnishment of the funds, the Allen Superior Court interfered with the Family Court's possession of the escrow account. The Family Court undoubtedly established the escrow account to ensure that the proceeds from FAB-Weld would be preserved as marital assets to be divided between the parties. Allowing another court to distribute funds from that escrow account would thwart the Family Court's purpose in establishing the account and would clearly impede the Family Court's jurisdiction. The Allen Superior Court therefore erred by ordering immediate garnishment of the funds held in the escrow account.
Sandler also argues that he was not subject to garnishment as trustee of the escrow account because he did not possess or have under his control any property of Gilliland's. Our research did not reveal any case, in Indiana or otherwise, addressing the precise issue whether a judgment creditor of one spouse could attach or garnish marital assets in an escrow account established by the court pending a marriage dissolution proceeding. Several *1177 courts have addressed the general issue whether an escrow account is subject to attachment or garnishment. Clearly, if the escrow account holds an interest belonging to the judgment debtor at the time the trustee or escrow agent is served notice, the escrow account is subject to attachment. See e.g., Malbin & Bullock, Inc. v. Hilton (1980), Ind. App., 401 N.E.2d 719; Clay v. Hamilton (1945), 116 Ind. App. 214, 63 N.E.2d 207. However, if the escrow account does not hold an interest belonging to the judgment debtor when notice is served, the account is not subject to attachment. See e.g., Terry v. Deitz (1874), 49 Ind. 293; First Central Coast Bank v. Cuesta Title Guarantee Co. (1983), 143 Cal. App.3d 12, 191 Cal. Rptr. 433.
At issue here is whether Sandler, as trustee of the escrow account, held an interest belonging to Gilliland, the judgment debtor. It has been said that a contingent or uncertain interest, where it is not clear that a debt is owing to the judgment debtor by the garnishee, is not subject to garnishment. See e.g., First Central, 191 Cal. Rptr. 433; Fico, Inc. v. Ghingher (1980), 287 Md. 150, 411 A.2d 430, 18 ALR4th 1077. On the other hand, an unmatured interest, where the uncertainty involves only the amount of the debt and not the liability itself, is subject to garnishment. First Central, 191 Cal. Rptr. 433; Fico, 411 A.2d 430.
In Fico, a judgment creditor attempted to attach an escrow account that had been established when the judgment debtor sold its business pursuant to the Uniform Bulk Transfers Act. Proceeds from the sale were paid to those creditors of the seller that the seller had made known to the buyer. The escrow account was established to hold sufficient funds to pay the creditors whose claims were disputed. The judgment creditor in this action had not been revealed to the buyer and the escrow account did not contain funds to pay the judgment creditor. However, there was no question that any surplus in the escrow account after the disputed claims were settled would belong to the seller/judgment debtor. Thus, the court held that the judgment debtor's interest in the escrow account was merely unmatured and not contingent. Id. The judgment creditor was entitled to attach the account to the extent any surplus remained after the other creditors were paid. The attachment created a lien against the account until such time as the other creditors had been paid and it could be determined whether there was a surplus that could be paid to the judgment creditor. Id.
In First Central, the judgment creditor of a real estate broker attempted to attach an escrow account established in connection with a transaction involving a sale of real estate. The escrow instructions provided that the judgment debtor was to receive a commission at the close of the escrow from funds deposited in the escrow account on behalf of one of the parties to the sale. The judgment creditor levied on the account on July 7; the escrow did not close until July 8 when all of the conditions of escrow had been satisfied. The court held that the judgment debtor's interest in the escrow was merely contingent until all conditions of escrow had been satisfied. Id. This was so because the judgment debtor did not have a right to the commission until all the conditions of escrow were satisfied. If for any reason escrow did not close, the escrow agent would not be liable to the judgment debtor for the commission to be paid out of the escrow funds. Thus, at the time the escrow agent was served notice of the attachment on July 7, the agent was not liable to the judgment debtor and there was nothing for the judgment creditor to attach. Id.
We are confronted here with a situation more like that found in First Central than in Fico. Gilliland does not have an interest in the funds held in escrow unless and until the Family Court makes a disposition of marital property giving Gilliland an interest in those funds. Thus, Sandler's liability as escrow agent to Gilliland is contingent upon the trial court's action. However, we do not agree with the California court in First Central that a contingent interest is not subject to attachment. We believe the better approach is that illustrated in In re Great Lakes Steel & Fabricating Industries, Inc. (Bkrtcy.N.D.Ind. 1988), *1178 83 B.R. 1015. In Great Lakes the judgment creditor obtained in the Porter County Superior Court an attachment order on the judgment debtor's interest in a counterclaim against the judgment garnishee. At the time, the judgment debtor's counterclaim was disputed, contingent and unliquidated. In its bankruptcy proceeding, the judgment debtor claimed that the judgment creditor did not have a priority to funds owed the judgment debtor by the garnishee defendant because the order of attachment was not valid. The bankruptcy court ruled that the order of attachment was valid even though the judgment debtor's interest in the counterclaim was contingent.
In doing so, the court recognized that Indiana has long held that choses in action (a right to recover a personal chattel or a sum of money) are subject to proceedings supplemental. Id. (citing Butler v. Jaffray (1859), 12 Ind. 504); accord Ind. Code 34-1-44-7 (authorizing court in proceedings supplemental to forbid transfers of choses in action). The Great Lakes court also distinguished pre-judgment attachment cases where future interests incapable of reasonable evaluation have not been allowed to be attached. The greater protection provided the defendant in pre-judgment proceedings is not necessary in proceedings supplemental because the claim has been determined to be a justly owed debt and reduced to a judgment. Great Lakes, 83 B.R. at 1022. Further, to hold that the judgment debtor's contingent interest in a counterclaim is not attachable "would permit a judgment debtor to keep its choses in action judgment-proof until such time as a settlement or judgment is entered. Moreover, it would render nugatory the continuing jurisdictional control endowed upon Indiana Courts by [I.C. XX-X-XX-X] over a judgment debtor's future income, profits, and assets." Id.
The same rationale is equally applicable here. Clearly, Gilliland's interest in the funds in the escrow account is contingent upon the Family Court's division of marital assets. Gilliland may be awarded all, some, or none of the funds in the account. However, the contingency of his interest should not preclude the Bank from attaching a lien on the account to protect its interests in the event the Family Court awards all or a part of the funds to Gilliland. To hold otherwise would impose an unjustifiable burden on the Bank to daily investigate whether the Family Court has entered a final order dividing the marital assets.
As we stated above, however, the Allen Superior Court improperly ordered immediate garnishment of the funds. Until the Family Court disposes of the escrow account and awards funds from that account to Gilliland, the Bank is entitled only to a lien on the account. Thus, we reverse the garnishment order and remand this case to the trial court with instructions to modify its judgment to reflect that the Bank has a valid lien on the escrow account to the extent that any portion of the account may be awarded to Gilliland by the Family Court.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
SHARPNACK, C.J., and SULLIVAN, J., concur.
NOTES
[1] The Bank's motion to strike a portion of Sandler's reply brief that raises a new theory on appeal is denied.
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17 So.3d 298 (2009)
J.L.
v.
STATE.
No. 3D09-192.
District Court of Appeal of Florida, Third District.
September 2, 2009.
Decision without published opinion. Affirmed.
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785 F.2d 305
Jonesv.Carpenter
85-6592
United States Court of Appeals,Fourth Circuit.
2/7/86
1
E.D.N.C.
AFFIRMED
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431 So.2d 396 (1983)
Mary A. BUTLER
v.
Ruth Daniels REDDICK a/k/a Ruth Daniels Riddick.
No. 82-C-2108.
Supreme Court of Louisiana.
April 4, 1983.
Rehearing Denied May 13, 1983.
*397 Clarence F. Favret, Jr., New Orleans, for applicant.
Frank S. Bruno, Jerry J. Blouin, Stephen P. Bruno, New Orleans, for respondent.
WATSON, Justice.
The issue is whether George Arthur Johnson made a valid manual inter vivos donation to Ms. Ruth D. Reddick of $49,970.80 in a joint bank account.
FACTS
George Arthur Johnson was once married to Hilla Wise West, the daughter of Ms. Reddick. After the two separated about 1960, Johnson remained in New York where he resided with his mother until the latter's death in July of 1974. In September of that year, Johnson moved to New Orleans. Ms. Reddick picked him up at the airport and he stayed with her. Subsequently, on October 11, 1974, the funds Johnson had in a New York bank were transferred to an account at the Hibernia National Bank in New Orleans. It is undisputed that the $49,970.80 deposited in the savings account belonged to Johnson but was deposited in the joint names of Mr. George A. Johnson or Mrs. Ruth D. Reddick. In parenthesis on the bank signature card is a notation "to buy property". Ms. Reddick did not recall the source of that notation. Ms. Reddick did purchase a house in 1975.
While Johnson resided with Ms. Reddick, she took him to the Veterans' Hospitals in New Orleans and Gulfport for treatment of high blood pressure. Various withdrawals were made from the Hibernia account between November 8, 1974, and April 24, 1975. According to Ms. Reddick "he [Johnson] did not want to have anything to do with it [the money] because I took care of him." (Tr. 33, 34) On May 1, 1975, while Johnson was in the hospital, Ms. Reddick withdrew the balance of $46,971.38. Ms. Reddick initially denied that decedent had been in the hospital at the time of the last withdrawal. She insisted that Johnson had resided with her when she transferred the funds but later admitted when questioned about her prior deposition that he had been in the hospital at the time.
Another account in the Colonial Bank was established on June 16, 1975, in the amount of $444.47. It was in the names of George Johnson or Mrs. Ruth D. Riddick. Ms. Reddick said "he [Johnson] didn't know that money [in the Colonial Bank] was coming." (Tr. 31) On June 7, 1976, the balance in that account of $498.35 was withdrawn by Ms. Reddick. Arthur Johnson died on June 9, 1976, two days later, of hypertensive cardiovascular disease. Ms. Reddick denied that she had made the withdrawal before Johnson's death and said the death certificate must be wrong. Ms. Reddick said the Colonial funds came from a different source than those in the Hibernia *398 account and she did not keep the Colonial money. Her uncontradicted testimony was that she gave these funds to Johnson's aunt, Ms. Butler, at Johnson's wake to pay for the funeral.
According to Ms. Reddick, Johnson intended from the beginning to give her the money in the Hibernia account, but she insisted that his name also be on the account. Johnson accompanied her on most of the occasions when she withdrew money from the account. Ms. Reddick bought cigarettes and clothing for Johnson with some of the money she withdrew. At the time of his death, Johnson resided with his aunt, Mary Ann Butler, the plaintiff and administratrix of his succession.
Ms. Reddick said that Johnson stayed with her through 1975, except when he was in the hospital, and went to live with his aunt after one of his hospitalizations. Ms. Reddick said that this move was less than a year before Johnson's death, but she did not know exactly how long he had been with his aunt. Johnson's aunt, Ms. Butler, was not allowed to testify about what Johnson told her concerning the bank account.
The trial court concluded that Johnson intended to donate the funds in the Hibernia account to Ms. Reddick and that the manual donation was completed when she converted those funds to her sole possession. Plaintiff's suit was dismissed.
The court of appeal affirmed on the ground that the circumstances testified to by Ms. Reddick corroborated her testimony that Johnson wanted her to have the money. Butler v. Reddick, 416 So.2d 332 (La. App. 4 Cir.1982). The court of appeal relied on Succession of Miller, 405 So.2d 812 (La., 1981) which it found could not be distinguished from the present case. A writ was granted to review the judgment of the court of appeal. 422 So.2d 151 (La., 1982).
CONCLUSION
LSA-C.C. art. 1539 provides:
"The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality."
Decedent Johnson established a joint savings account with Ms. Reddick.
"As concerns the funds in the savings account, while it is true that the savings account, or the right to the funds therein, is an incorporeal movable, and thus as such not subject to manual gift, the cash, withdrawn from the savings account, is a corporeal movable and subject to manual gift provided there was actual delivery of the funds." Succession of Miller, 405 So.2d at 818.
Succession of Miller held that when the donor's will to give and the donee's physical possession of the movable property (cash in a joint savings account) operated simultaneously, there was sufficient delivery to constitute a valid inter vivos manual donation. The court of appeal opinion here errs in stating that, at the time of the last withdrawal, when decedent was in the hospital, he repeated that he wanted Ms. Reddick to have the money.[1] At no point in her testimony did Ms. Reddick state that when decedent was in the hospital at the time of the last withdrawal he specifically said that he wanted her to have the money. Thus, there is a significant distinction between Miller and the instant case, because there is no evidence that the will of Johnson to give and Ms. Reddick's actual possession of the money operated simultaneously.
In Miller, there was no question that Ms. Miller wanted her cousin to have her property. Although Ms. Miller was comatose when her cousin withdrew the funds in the joint account and completed the donation, there was no evidence that Ms. Miller might have had a contrary intention at the time the donation was completed. The strong evidence in Miller that Ms. Miller intended a donation at the time that Ms. Meyer withdrew the funds is missing here.
Absent here are the many circumstances in Miller which corroborated the donor's *399 intention. On the Miller account, after the two signature names, there was a statement in parenthesis "payable to either or survivor". Here, the notation on the signature card said that the funds were intended for the purchase of property. Although Ms. Miller's written will was technically invalid, it left everything she possessed to her cousin, the donee. The will expressed great gratitude to that cousin. The donee, Ms. Meyer, cared for Ms. Miller until her final hospitalization, whereas Johnson left Ms. Reddick to live with his aunt.
Overlooked by the court of appeal here is the requirement stated in Succession of Woolfolk, 225 La. 1, 71 So.2d 861 (1954):
"... The burden of proving the donation is on the donee and under the decisions of this Court, the proof to support the donation must be strong and convincing." (emphasis added) 71 So.2d 864.
Here, there is no corroboration of a donative intent, only the self-serving testimony of the donee that Johnson wanted her to have the money. "[T]estimony as to the oral declarations ... of a dead man are of... little weight, ..." Succession of Zacharie, 119 La. 150, 43 So. 988 at 990 (1970). Ms. Reddick admitted that she made purchases for Johnson with the funds in the account. Since Johnson was in and out of the hospital and unable to handle his own financial affairs, the joint account alone does not establish a donative intent. During one of Johnson's hospitalizations, Ms. Reddick withdrew the balance in the bank account and converted it to her own use. After this or a subsequent hospitalization, Johnson did not continue to reside with Ms. Reddick but went to live with his aunt. It is suspicious that most of the funds were transferred while Johnson was in the hospital and Ms. Reddick tried to deny that fact. While she said she had a poor memory, a date when she withdrew almost $47,000 from the bank should have been clear in her mind.
The trial court and court of appeal erred in finding a valid manual donation of decedent's funds on the basis of the flimsy evidence presented here.[2]
DECREE
The judgment of the court of appeal is reversed and it is ordered that plaintiff, Mary Ann Butler, have judgment against defendant, Ruth Daniels Reddick, and her survivors in the sum of $46,971.38.[3]
REVERSED AND RENDERED.
NOTES
[1] "... [A]t the time of the last withdrawal decedent was in the hospital but repeated that he wanted her to have the money." 416 So.2d at 333.
[2] Strong equitable considerations may justify a judicial exception to the requirement of actual physical delivery. Such exceptions have only been made when the evidence of donative intent was very strong. See the cases cited in Succession of Miller: Succession of Gorman, 209 La. 1092, 26 So.2d 150 (1946); Gibson v. Hearn, 164 La. 65, 113 So. 766 (1927); Succession of Zacharie, supra.
[3] Ms. Reddick's children, Barbara Warren, Helois Jenkins and William West, were substituted as defendants after Ms. Reddick's death.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-69,417-01
TYRONE EDWARDS, Relator
v.
McLENNAN DISTRICT CLERK, Respondent
ON APPLICATION FOR A WRIT OF MANDAMUS
CAUSE NO. 98-884-C IN THE 54th JUDICIAL DISTRICT COURT
FROM McLENNAN COUNTY
Per curiam.
O R D E R
Relator has filed a motion for leave to file a writ of mandamus pursuant to the original
jurisdiction of this Court. In it, he contends that he filed an application for a writ of habeas corpus
in the 54th Judicial District Court of McLennan County, that more than 35 days have elapsed, and
that the application has not yet been forwarded to this Court.
In these circumstances, additional facts are needed. The respondent, the District Clerk of
McLennan County, is ordered to file a response, which may be made by: submitting the record on
such habeas corpus application; submitting a copy of a timely filed order which designates issues
to be investigated, see McCree v. Hampton, 824 S.W.2d 578 (Tex. Crim. App. 1992); by stating that
the nature of the claims asserted in the application filed by Relator is such that the claims are not
cognizable under Tex. Code Crim. Proc. art. 11.07, § 3; or stating that Relator has not filed an
application for habeas corpus in McLennan County. This application for leave to file a writ of
mandamus shall be held in abeyance until the respondent has submitted the appropriate response.
Such response shall be submitted within 30 days of the date of this order.
Filed: March 12, 2008
Do not publish
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870 F.2d 652
U.S.v.Gallagher (Anthony)
NO. 88-5616
United States Court of Appeals,Third Circuit.
FEB 28, 1989
Appeal From: D.N.J.,
Debevoise, J.
1
AFFIRMED.
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21 So.3d 106 (2009)
Jorge Sueiro HERNANDEZ, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D09-2433.
District Court of Appeal of Florida, Third District.
October 21, 2009.
Rehearing Denied December 3, 2009.
Jorge Sueiro Hernandez, in proper person.
Bill McCollum, Attorney General, for appellee.
Before COPE, GERSTEN and SUAREZ, JJ.
COPE, J.
This is an appeal of an order denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.
According to the motion, defendant-appellant Hernandez entered a plea to the offense of burglary of an unoccupied dwelling, and was sentenced to fifteen years as a Prison Releasee Reoffender ("PRR"). The crime date was October 8, 2004. The defendant contends that burglary of an unoccupied dwelling is not a qualifying offense for purposes of the PRR statute.
The trial court was entirely correct in denying the claim. The PRR statute was *107 amended in 2001 so that burglary of a dwelling, whether occupied or unoccupied, is a qualifying offense. Ch. 2001-239, § 1, Laws of Fla.; Tumblin v. State, 965 So.2d 354, 355 (Fla. 4th DCA 2007); Bradshaw v. State, 891 So.2d 1184, 1184 n. 1 (Fla. 2d DCA 2005). The statutory version applicable to this defendant is section 775.082(9)(a)1.2., Florida. Statutes (2004).
Affirmed.
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287 F.Supp. 561 (1968)
James BOYD, Bernard Hughes, Cecil Ralph Hendrix, and Charter Taylor, Jr., Plaintiffs,
v.
Ramsey CLARK, as Attorney General of the United States, Lewis B. Hershey, as Director of Selective Service of the United States, Paul Akst, as Director of Selective Service of the City of New York, Selective Service Board No. 44 of the City of New York and Selective Service Board No. 2 of the City of New York, Defendants.
No. 67 Civ. 2529.
United States District Court S. D. New York.
Argued January 2, 1968.
Argued January 26, 1968.
Decided June 26, 1968.
*562 Victor Rabinowitz, New York City, (Dorian Bowman, and Rabinowitz, Boudin & Standard, New York City, on the brief), for plaintiffs.
Lawrence W. Schilling and Arthur S. Olick, Asst. U. S. Attys., (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, on the brief), for defendants.
Before HAYS, Circuit Judge, and EDELSTEIN and McLEAN, District Judges.
HAYS, Circuit Judge:
This is an action brought by four Selective Service registrants challenging the constitutionality of the student deferments provided in Section 6(h) (1) of the Military Selective Service Act of 1967, 50 U.S.C.A. App. § 456(h) (1) (Supp.1967), on the grounds that student deferments (1) discriminate against persons who are economically unable to attend college and (2) are arbitrary and bear no reasonable relationship to the purpose of the Act.[1] Plaintiffs, who are all classified I-A,[*] allege that they are unable to secure student deferments solely because they lack the financial means to attend college. The injury claimed is an increased likelihood of induction, because, so the plaintiffs allege, registrants who are deferred as students thereby ordinarily postpone their induction for several years and in many cases escape service entirely by acquiring other deferments. The relief sought is a decree that the Act is unconstitutional as applied to plaintiffs and an injunction restraining defendants from ordering plaintiffs inducted and from prosecuting them for violation of the Act.
At plaintiffs' request a three-judge court was convened pursuant to 28 U.S. C. §§ 2282 and 2284.
We turn first to a consideration of defendants' motion to dismiss the complaint for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted.
I.
Defendants urge that this court is deprived of jurisdiction of the subject matter by Section 10(b) (3) of the Act, 50 U.S.C.A. App. § 460(b) (3) (Supp. 1967):
"* * * No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant."
Although the section makes no mention of the availability of habeas corpus after induction, it is doubtful that Congress intended to eliminate that traditional remedy for challenging draft classification. The legislative history indicates that the statutory provision was intended merely as a codification of existing case law. See 113 Cong.Rec. 8052 *563 (Daily ed. June 12, 1967) (statement of Sen. Russell); H.R.Rep. No. 267, 90th Cong., 1st Sess. pp. 30-31 (1967); U. S. Code Congressional and Administrative News p. 1308.
Plaintiffs claim that Section 10(b) (3) was not designed to cover this kind of suit. They cite references in the statute and legislative history, supra, to the "no basis in fact" test and "exhaustion of administrative remedies" as evidence that Congress was concerned only with the typical case of the registrant who claims that his local Selective Service Board classified him in the wrong category. (Plaintiffs concede that they are properly classified in I-A.)
Even if plaintiffs' argument as to the inapplicability of the statute were to be accepted, they would gain little. It would still be necessary for them to establish the inapplicability of the pre-1967 decisions holding that defense to a criminal proceeding and post-induction writ of habeas corpus are the exclusive means by which classifications may be challenged. See, e. g., Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L. Ed. 567 (1946); Witmer v. United States, 348 U.S. 375, 377, 75 S.Ct. 392, 99 L.Ed. 428 (1955); Watkins v. Rupert, 224 F.2d 47 (2d Cir. 1955); Schwartz v. Strauss, 114 F.Supp. 438 (S.D.N.Y.), aff'd on opinion below, 206 F.2d 767 (2d Cir. 1953).
A registrant who has not received and acted on an order of induction cannot get injunctive relief because he cannot show "irreparable harm," Watkins v. Rupert, supra, 224 F.2d at 48; Muhammad Ali v. Breathitt, 268 F. Supp. 63, 65 (W.D.Ky.1967); because he is not "aggrieved," Daniels v. United States, 372 F.2d 407, 414 (9th Cir. 1967); because he lacks "standing" in light of the lack of immediate danger of direct injury, Katz v. United States, 287 F.Supp. 29 (S.D.N.Y. Aug. 8, 1966); because the action is "premature" or "not ripe," Feldman v. Local Board No. 22, 239 F.Supp. 102, 105-106 (S.D.N.Y. 1964), Westerbeke v. Local Draft Board No. 2, 118 F.Supp. 441, 444 (S.D.N.Y. 1954); and because the dispute may become "moot" or "academic," Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 823 (2d Cir. 1967), Feldman v. Local Board No. 22, supra, 239 F.Supp. at 105.
In Wolff v. Selective Service Local Board No. 16, supra, plaintiffs alleged that they were reclassified I-A for participating in a draft protest. The court expressed itself as concerned with the chilling effect on the exercise of first amendment rights created by the threat of reclassification and held that plaintiffs had sustained a legally cognizable injury for which they could seek injunctive relief.[2] However, the court said that in the ordinary case, injunctive relief would be inappropriate.
"* * * in the usual run of Selective Service cases, the registrant must wait until he receives an induction order, and has either obeyed it or is prosecuted for refusing to obey it, before the courts may review his classification. This is so because, in nearly all cases, it is service in the armed forces itself, and not the mere classification, that constitutes the alleged injury. Thus, should it develop that for independent reasons such as physical disability the registrant is not actually wanted by the armed forces, he will never have sustained a legally redressible injury. Perhaps it is true that a mere adverse classification will cause a disarray of plans and emotional upset but this is an acceptable price to pay for the efficient functioning of the Selective Service * * *." Id., 372 F.2d at 823.
Courts, commentators and Congress agree that any incidental inconvenience to plaintiffs is outweighed by the value of keeping the Selective Service System *564 from becoming entangled in litigation which may prove unnecessary. See, e. g., Falbo v. United States, 320 U.S. 549, 554-555, 64 S.Ct. 346, 88 L.Ed. 305 (1944); Comment, Fairness and Due Process Under the Selective Service System, 114 U.Pa.L.Rev. 1014, 1018-19 (1966); H.R.Rep. No. 267, 90th Cong., 1st Sess. pp. 30-31.
Since plaintiffs may never be required to report for induction, we hold that their claim is prematurely made and is not now ripe for adjudication.
II.
Even if we were to conclude that plaintiffs' claims were justiciable, however, we would be required to dismiss the complaint for want of jurisdiction. Jurisdiction of this suit is claimed under 28 U.S.C. § 1331, the general federal question statute, which requires that "the matter in controversy" exceed "the sum or value of $10,000." Plaintiffs' counsel concedes that he cannot prove that any of the plaintiffs will suffer a monetary loss of more than $10,000 by reason of the injury alleged.
It is firmly settled law that cases involving rights not capable of valuation in money may not be heard in federal courts where the applicable jurisdictional statute requires that the matter in controversy exceed a certain number of dollars. The rule was laid down in Barry v. Mercein, 46 U.S. (5 How.) 103, 12 L.Ed. 70 (1847), a child custody case.[3] The "right to the custody, care, and society" of a child, the court noted, "is evidently utterly incapable of being reduced to any pecuniary standard of value, as it rises superior to money considerations." 46 U.S. at 120. Since the statute permitted appeals only in those cases where the "matter in dispute exceeds the sum or value of two thousand dollars," the court concluded that it was without jurisdiction:
"The words of the act of Congress are plain and unambiguous * * *. There are no words in the law, which by any just interpretation can be held to * * * authorize us to take cognizance of cases to which no test of money value can be applied." 46 U.S. at 120.
Subsequent decisions have followed this reasoning. See Kurtz v. Moffitt, 115 U.S. 487, 498, 6 S.Ct. 148, 29 L.Ed. 458 (1885); First Nat. Bank of Youngstown v. Hughes, 106 U.S. 523, 1 S.Ct. 489, 27 L.Ed. 268 (1882); Giancana v. Johnson, 335 F.2d 366 (7th Cir. 1964), cert. denied, 379 U.S. 1001, 85 S.Ct. 718, 13 L. Ed.2d 702 (1965); Carroll v. Somervell, 116 F.2d 918 (2d Cir. 1941); United States ex rel. Curtiss v. Haviland, 297 F. 431 (2d Cir. 1924); 1 Moore, Federal Practice ¶ 0.92[5] (2d ed. 1964).[4]
The action is dismissed for lack of a justiciable controversy and for want of jurisdiction.
EDELSTEIN, District Judge (dissenting):
I dissent.
I would deny defendants' motion to dismiss the complaint for lack of jurisdiction of the subject matter and for failure to state a claim upon which relief can be granted. Since the majority opinion separates the two grounds for dismissal in separately numbered portions of the opinion, my dissent will follow a similar sequence.
*565 I.
In the first place, it is helpful to point out what this case is notit is not a challenge to an individual's personal Selective Service classification in the Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946), tradition. Plaintiffs[*] clearly and unequivocally concede that under the present system of Selective Service classifications that their individual classifications are indeed correct. Section 10(b) (3) of the Selective Service Act, 50 U.S.C.A. App. § 460(b) (3) (Supp.1967), relied upon so heavily by the defendants, is by its very language not relevant to the set of facts at bar for it states "* * * No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President * * *." (emphasis added). The plaintiffs are not objecting to their individual classifications or processing within the system as it exists but are instead seriously objecting to the constitutionality of the whole system of classifying and processing due to an alleged unconstitutional taint.
The majority opinion, in broad gauge, lists several excerpts from various cases to establish a rationale for the proposition that a registrant who has not received and acted on an order of induction cannot get injunctive relief. The actual rationale is, as later mentioned in the majority opinion, that "any incidental inconvenience to plaintiffs is outweighed by the value of keeping the Selective Service System from becoming entangled in litigation which may prove unnecessary." In short, one person may not burden the Selective Service System with his individual problems until he is actually "under the gun." The cases cited by the majority opinion, with one exception, Muhammad Ali v. Breathitt, 268 F.Supp. 63 (W.D.Ky.1967), are all classification cases and easily explainable in the light of the true rationale.
In the case at bar, the rationale is not agreeable to reason. These plaintiffs are attacking an integral part of the Selective Service System. This case is an attempt to challenge the concept of student deferments which is a basic part of the Selective Service whole. It serves no purpose to defer this case for later, as in the case of individual classifications, since if the System is indeed unconstitutional, it is better to strike it down now before more harm be done, while if the System is constitutional, it serves the national purpose to vindicate it in these times when the System is subject to intense and often hostile questioning by large segments of the American people. To the extent that Muhammad Ali v. Breathitt, supra, would call for a contrary result, I would decline to follow it.
In the usual classification case, the plaintiff attempts to demonstrate why he should not be classified I-A. His grievance is not actually his alleged misclassification but his contemplated induction into the armed forces as a result of the alleged error in classification. In the case at bar, the plaintiffs are not complaining about military service as such. What they are complaining about is the increased likelihood that they, rather than others who hold a II-S deferment, will have to serve. They allege that an unconstitutional preference has been established and that their increased likelihood of induction is the harsh result of that preference. This increased likelihood of induction exists nowindeed, it would end once the plaintiffs are in fact inducted. This alleged unfairness *566 is harmful both in tangible and intangible ways. It pervades their entire lives and acts as an inhibiting force upon their daily activities. It is claimed by plaintiffs that numerous II-S classification holders are in fact never called for military service for a variety of reasons. If this is true, and it must be emphasized that plaintiffs have not been given the chance to prove this contention, then plaintiffs are in the position of being liable for national service while others are not. This is a contingent liability of a very painful sort. It is difficult enough to be uncertain as to whether or not one must serve in terms of planning a life for oneself, but it is indeed lamentable that this must be so when others are relatively free from this predicament. It is painful enough to feel that one is being discriminated against, but how much worse must it be if that is really the situation? The draft and the possibility of its being a monstrous discrimination against the underprivileged is a topic which has caused concern to many. The plaintiffs must be given a chance to demonstrate that the student deferments are indeed an unconstitutional discrimination so that the Selective Service System will either stand free from doubt or be called to task. The plaintiffs, as a part of the general public most immediately affected by the System, have the standing to free their minds from their bitter certainty that the System is weighted against them. They have the standing to seek freedom of their persons from the greater chance of a service which, though honored and honorable, is not one of their choice if others, for reasons which our Constitution holds to be invalid, are spared.
The doctrine of ripeness is sometimes invoked to bar an adjudication. All that the doctrine of ripeness means is that a court will not decide a case until it is practical to do so. In considering whether or not a case is ripe a court looks to see if a dispute has reached that stage in its maturing in which judicial intervention is the best solution and whether that intervention can effectively settle the matter. In the case at bar the time for decision seems suitable now. It is as important to the Selective Service System as it is to the plaintiffs to have this unsettled and disquieting question resolved at the earliest possible time.
In Wolff v. Selective Service Local Board No. 16, 372 F.2d 817 (2d Cir. 1967), a classification case, two plaintiffs were held entitled to pre-induction relief. The court in Wolff decided that since the plaintiffs were classified I-A as a punishment for participating in a draft protest, this type of reclassification would have the effect of stifling free speech and was therefore an interference with first amendment rights and immediately redressible in court. If that court were merely worried about the first amendment rights of Wolff and his co-plaintiff, it might very well have required them to wait until they were actually inducted. After all, they were already reclassified I-A, what more could the local board do to them except call them for induction? There was nothing else that could have been done to interfere with their first amendment rights. The court must have been looking at the chilling effect on the exercise of first amendment rights created by the threat of reclassification as that threat related to others not yet reclassified. Wolff was not the case of two individuals and their respective reclassifications but in actuality it dealt with an entire class of war protesting college students. The same urgency for a decision on the merits is presented by the case at bar. Now, when there are grumblings to be heard, is the time to tell not just these plaintiffs but the whole class of non-students whether or not they are being deprived of their fifth amendment rights.
The majority opinion infers that plaintiffs' proper method of procedure is to be inducted and then to proceed by habeas corpus. The opinion candidly expresses the possibility that habeas corpus may be precluded by Section 10(b) (3) of the Selective Service Act although *567 it does belittle this possibility. Research has indicated no case in which an induction was challenged on grounds similar to those in the case at bar by petition of habeas corpus. The habeas cases are all classification cases and this is not a classification case. The plaintiffs are not challenging their classifications and after induction they would be hard pressed to say that they should not be soldiers. In addition, by the time a habeas petition could be brought their claim would be overripe. The increased likelihood of induction would have silently slipped into the reality of induction and plaintiffs' claim would have expired.
In any event, possibility of habeas or no, this is the time to come to grips with plaintiffs' contentions on the merits. This is a three-judge statutory court empaneled to hear and determine constitutional issues. Such an issue is present now and it should be reached. Habeas corpus is a remedy for a wrong already doneit is not a proceeding to hear and determine in the first instance.
II.
The majority opinion holds that this court is without jurisdiction since jurisdiction is claimed by the plaintiffs under 28 U.S.C. § 1331 and the matter in controversy does not exceed the sum or value of $10,000.00. The majority opinion points out that plaintiffs' counsel has conceded that he cannot prove that any of the plaintiffs will suffer a monetary loss of more than $10,000.00.
In the first place, it should be indicated that the jurisdictional amount question was raised by the court sua sponte. Plaintiffs, in their amended complaint, alleged that the matter in controversy exceeds the sum of $10,000.00 and this allegation was not denied by the Government. Often a district court will raise this question itself, but such a procedure is only utilized to keep picayune cases in the state small claims courts where they belong.
Two different, although similar, rationales have been given for the jurisdictional amount portion of the statute. The Supreme Court, in Healy v. Ratta, 292 U.S. 263, 54 S.Ct. 700, 78 L.Ed. 1248 (1934), spoke as follows:
From the beginning suits between citizens of different states, or involving federal questions, could neither be brought in the federal courts nor removed to them, unless the value of the matter in controversy was more than a specified amount. Cases involving lesser amounts have been left to be dealt with exclusively by state courts, except that judgment of the highest court of a state adjudicating a federal right may be reviewed by this Court. Pursuant to this policy the jurisdiction of federal courts of first instance has been narrowed by successive acts of Congress, which have progressively increased the jurisdictional amount. (footnote omitted). The policy of the statute calls for its strict construction. The power reserved to the states, under the Constitution, to provide for the determination of controversies in their courts may be restricted only by the action of Congress in conformity to the judiciary sections of the Constitution. (citation omitted). Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined. (citations omitted). Id. at 269-270, 54 S. Ct. at 703.
The case at bar clearly does not involve any notions of federalism. It is apparent that a state court would be powerless to act against the federal Selective Service System.
In Giancana v. Johnson, 335 F.2d 366 (7th Cir. 1964), cert. denied, 379 U.S. 1001, 85 S.Ct. 718, 13 L.Ed.2d 702 (1965), the court quoted from the Senate Report which accompanied the bill which raised the jurisdictional amount to $10,000.00:
"The recommendations of the Judicial Conference regarding the amount *568 in controversy, which this committee approves, is based on the premise that the amount should be fixed at a sum of money that will make jurisdiction available in all substantial controversies where other elements of Federal jurisdiction are present. The jurisdictional amount should not be so high as to convert the Federal courts into courts of big business nor so low as to fritter away their time in the trial of petty controversies." Id. at 368-369 n. 7, quoting from S.Rep. No. 1830, 85th Cong., 2d Sess. (1958), 1958 U. S.Code Cong. & Ad. News, pp. 3099, 3101.
This case is hardly a petty controversy with which this court would fritter away its time if it were to hear this case on its merits.
The dissent in Giancana heartily disagreed with the majority's dismissal for want of jurisdictional amount in controversy:
It is incongruous to hold that a formal allegation of the amount in controversy is necessary when personal liberties of the magnitude alleged in the complaint and found by the district court are involved. To require a dollar value to be specifically averred in these circumstances is to exalt form over substance.
In my opinion the fact that there was no formal allegation of the requisite jurisdictional amount did not prevent the district court from assuming jurisdiction. The complaint alleged that defendant and his agents deprived plaintiff of the use of his home and that they violated his right of privacy and personal liberty. From these allegations the district court could infer, contrary to what the majority indicates, that the amount in controversy exceeded $10,000.00. Id. at 371.
In the case at bar, plaintiffs did aver that the amount in controversy exceeds $10,000.00. The court could easily assume that freedom from an unconstitutional discrimination exceeds the sum or value of $10,000.00. This is not the nineteenth century where property rights were valued over human rights. If a man can sue in federal court on the allegation that the government is injuring his property, he certainly must be allowed to sue on the allegation that the government is oppressing him personally. Although it might be said that human rights are incapable of valuation and hence valueless, it is better to view them as incapable of valuation but only because they are of infinite value. The latter view is, in my humble opinion, the only view compatible with the commitment of our nation to a belief in the dignity of man and the inherent worth of a free individual in a free society.
It might even be that if Section 1331 were faced squarely and plaintiffs were required to demonstrate that the matter in controversy was worth some precise monetary amount (a demonstration that plaintiffs concededly cannot make), that Section 1331 is unconstitutional as applied to the situation at bar. Since plaintiffs cannot bring their action in a state court, if Section 1331 is used to cut them off from a federal forum they are left with a claim of governmental unfairness with no situs of adjudication. They have not even an administrative tribunal available to hear their complaint since the local draft board, the appeals board, or the national board are obviously without power to declare unconstitutional a portion of the statute which created them. Is it compatible with the fifth amendment's guarantee of due process to sanction such a state of affairs?
As courts are justifiably loath to declare acts of Congress unconstitutional if there exists another less drastic method of dispensing justice, one solution out of this court created jurisdictional dilemma is to accept plaintiffs' allegation that the amount in controversy exceeds $10,000.00 either on the theory that allegations not denied are deemed established or on the theory that an alleged discriminatory interference is inherently worth more than $10,000.00.
*569 In Townsend v. Zimmerman, 237 F.2d 376 (6th Cir. 1956), the amount in controversy requirement was not even touched upon. Judge (now Mr. Justice) Stewart reversed the denial of a pre-induction injunction in a classification case when the local board denied plaintiff his right of an administrative appeal. Neither the court's opinion, nor the briefs submitted by the parties, nor plaintiff's complaint mentioned any jurisdictional amount or any statutory basis of jurisdiction for that matter.
Since this controversy is ripe for adjudication and since the jurisdictional requirements of 28 U.S.C. § 1331 are met, this court should proceed to hear this case on its merits.
NOTES
[1] A somewhat similar challenge to student deferments was rejected in Talmanson v. United States, 386 F.2d 811 (1st Cir. 1967) on grounds other than those upon which we rely.
[*] We are informed that during the period that this case was sub judice some of the plaintiffs were reclassified. However since at least one plaintiff is still classified in I-A, reclassification of others does not affect the result which we have reached.
[2] It can be argued that Section 10(b) (3) has overruled Wolff. See Carpenter v. Hendrix, 277 F.Supp. 660 (N.D.Ga.1967); H.R.Rep. No. 267, 90th Cong., 1st Sess. pp. 30-31 (1967); 81 Harv.L.Rev. 685, 689 (1968).
[3] See, e. g., Perrine v. Slack, 164 U.S. 452, 17 S.Ct. 79, 41 L.Ed. 510 (1896); Clifford v. Williams, 131 F. 100 (C.C. N.D.Wash.1904).
[4] A few decisions have refused to dismiss suits for damages for invasion of rights which appear impossible of pecuniary evaluation on the ground that a jury might award sufficient damages to satisfy the jurisdictional amount. See Wiley v. Sinkler, 179 U.S. 58, 65, 21 S.Ct. 17, 45 L.Ed. 84 (1900) (rejection of vote); Brickhouse v. Brooks, 165 F. 534, 543 (C.C.E.D.Va.1908) (rejection of vote). See also Hynes v. Briggs, 41 F. 468 (C.C. E.D.Ark.1890) (false imprisonment for fifteen minutes).
[*] The court has been advised by the United States Attorney, by letter dated June 19, 1968, that plaintiff Bernard Hughes was classified II-S by his local board on June 11, 1968, that plaintiff Ralph Hendrix was classified II-A by his local board on April 9, 1968, that plaintiff James Boyd was classified I-A by his local board, after his request for conscientious objector status was denied, on June 10, 1968, and that a response is being awaited from plaintiff Charter Taylor, Jr.'s, local board as to his current status. These new developments have no effect on this dissent except for the possibility that it may only apply to the plaintiff Boyd.
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 7, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
________________________
No. 02-50656
________________________
In The Matter Of: LARRY WILLIAMS;
SHANNON BRITTON WILLIAMS
Debtors
LARRY WILLIAMS
Appellant
-vs-
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS
LOCAL 520
Appellee
Appeal from the United States District Court
for the Western District of Texas
Before DeMOSS and STEWART, Circuit Judges, and LITTLE*, District Judge.
LITTLE, District Judge:
This appeal centers upon the interpretation of Section 523(a)(6) of the Bankruptcy Code.
That provision states, “A discharge under section 727 . . . of this title does not discharge an individual
debtor from any debt for willful and malicious injury by the debtor to another entity or to the property
of another entity.” 11 U.S.C. § 523(a)(6). The issues to be determined are whether this provision
*
District Judge of the Western District of Louisiana, sitting by designation.
excepts from discharge debts arising out of a knowing breach of contract and whether the actions of
the appellant, which include violating a collective bargaining agreement and an Agreed Final
Judgment and Decree, caused willful and malicious injury. The district court held that the debts
resulted from willful and malicious injury and were nondischargeable under Section 523(a)(6). For
the reasons that follow, we AFFIRM in part and REVERSE in part.
I.
This appeal arises out of the bankruptcy filing of the Appellant-Debtor Larry Williams
(“Williams”). Williams is an independent electrical contractor in Texas. He initially operated his
electrical contracting business as an “open shop” that employed non-union electricians. Apparently
because o f this practice, Williams’s business was targeted by the Appellee-Creditor, International
Brotherhood of Electrical Workers Local 520 (“the Union”). Union members applied to work for
Williams on a large commercial project, known as “the Eckerd project,” but deliberately did not
inform Williams of their affiliation with the Union. Williams hired these applicants. When work on
the Eckerd project was to commence, the electricians revealed their Union membership and requested
wage and benefit increases. Williams, who had used non-union wages in calculating the cost of the
project, was unable to grant these demanded increases. The Union workers went on strike.1
As a result of the strike, Williams was unable to begin working as scheduled on the Eckerd
project and encountered difficulty with the project’s general contractor. After an unsuccessful
attempt to hire non-union electricians, Williams entered a collective bargaining agreement (“CBA”)
1
Williams was the target of “salting” by the Union. Salting, as described in Williams’s brief, is
accomplished when Union workers conceal their Union membership, apply for non-union jobs, and then
demand union-level compensation from the employer.
2
with the Union, which had promised to provide the necessary employees for the Eckerd project.
Under Article III, Section 2 of the CBA, Williams agreed to use the Union hiring hall as “the sole and
exclusive source of referral of applicants for employment.” After having additional problems with
the Union electricians, however, Williams hired non-union electricians to complete the Eckerd
project.2 Williams hired these electricians instead of following the grievance procedures outlined in
the CBA. The Union then initiated a grievance against Williams. After a hearing before the Labor
Management Committee, Williams was found to have violated Article III, Section 2 of the CBA.
The dispute between Williams and the Union was resolved when the parties entered an Agreed
Final Judgment and Decree which was approved by the United States District Court for the Western
District of Texas on 14 December 1999. Under the Agreed Judgment, Williams was obligated to hire
electricians for commercial projects exclusively through the Union. In addition, the district court
ordered an audit of Williams’s books and records to determine past compliance with the CBA. Upon
a finding of non-compliance, Williams was ordered to pay restitution of wages and benefits to Union
members denied employment and the Union’s attorney’s fees.3
Williams planned to perform only non-commercial projects as a means of subverting the CBA,
but a decline in residential construction projects threatened to shut down Williams’s business. In
violation of the Agreed Judgment, Williams performed two commercial projects for which he hired
non-union electricians. The Union filed a complaint for monetary and injunctive relief with the district
2
The record indicates that at least one of the workers hired through the Union was discovered
sleeping at the construction site. Williams also alleges that on one occasion, Union electricians absented the
construction site and spent an afternoon at a topless bar.
3
It appears from statements by Williams’s attorney in the record that this initial award of attorney’s
fees was paid.
3
court. In a Judgment dated 25 April 2000, the district court found Williams had willfully and
purposefully violated the Agreed Judgment and held him in contempt of court. Based upon the
results of the audit it had requested, the court ordered Williams to pay $155,855.39 as restitution for
his original breach of the CBA. The court ordered a second audit to determine the amount of
restitution Williams owed for ongoing non-compliance with the Agreed Judgment from 1 December
1999 through 19 April 2000. This amount totaled $106,911.43. The court also awarded the Union
attorney’s fees for prosecuting the contempt action.
A few weeks after the district court issued its judgment, Williams and his wife filed a petition
for relief under Chapter 13 of the Bankruptcy Code. In the bankruptcy proceedings, Williams
challenged the accuracy of the two audits conducted by the Union. On appeal, it was determined that
Williams was precluded from relitigating in bankruptcy the accuracy of the first audit ordered by the
district court and that Williams had forfeited his right to challenge the accuracy of the second audit
by refusing to cooperate with auditors. See Williams v. International Brotherhood of Electrical
Workers Local 520 (In re Williams), 289 F.3d 458, 460 (5th Cir. 2002). The underlying nature of
the debts for purposes of Section 523(a)(6) was not addressed in this prior proceeding. See Archer
v. Warner, U.S. , 123 S.Ct. 1462, 71 U.S.L.W. 4249, 4251 (2003) (expl aining that the
underlying nature of a debt is not intended to be determined in a proceeding in which
“nondischargeability concerns are not directly in issue and neither party has a full incentive to litigate
them.” (citation omitted)).
The Williamses converted their Chapter 13 petition to a Chapter 7 petition on 1 June 2001,
and an Order of Discharge was entered. The Union filed a complaint with the bankruptcy court
seeking to have the two debts from the CBA violations excepted from discharge under 11 U.S.C. §
4
523(a)(6). In a Judgment dated 19 February 2002, the United States Bankruptcy Court for the
Western District of Texas, Austin Division, held that the Union’s unsecured claims in the amounts
of $155,855.39, representing the restitution ordered for the first CBA violation, and $106,911.43,
representing damages for Williams’s violation of the Agreed Judgment, were excepted from
discharge. The court held these debts arose from willful and malicious injury. The bankruptcy court
further excepted from discharge the attorney’s fees awarded by the district court in its 25 April 2000
order.
On 20 May 2002, the district court affirmed the bankruptcy court’s decision in an Order and
Final Judgment. Williams timely filed notice of appeal to the United States Court of Appeals for the
Fifth Circuit on 10 June 2002. We have jurisdiction under 28 U.S.C. § 158(d).
II.
We review the bankruptcy court’s findings of fact for clear error and conclusions of law de
novo. Hickman v. Texas (In re Hickman), 260 F.3d 400, 401 (5th Cir. 2001) (citing In re Mercer,
246 F.3d 391, 402 (5th Cir. 2001)). The interpretation of Section 523(a)(6) is a question of law and
is reviewed de novo. See id. (applying the de novo standard of review to the interpretation of Section
523(a)(7)). The bankruptcy court’s findings of fact may be reversed only if the reviewing court has
“‘the definite and firm conviction that a mistake has been made.’” Cotten v. Deasy, 2002 WL
31114061 *2 (N.D. Tex. 2002) (citing Matter of Allison, 960 F.2d 481, 483 (5th Cir. 1992)).
The United States Supreme Court has established guidelines for determining whether a debt
arises from a willful and malicious injury and, therefore, is excepted from discharge under Section
523(a)(6). See Kawaauhau v. Geiger, 523 U.S. 57, 59, 118 S.Ct. 974, 975-76, 140 L. Ed. 2d 90
(1998) (holding that Section 523(a)(6) does not except from discharge debts arising from negligently
5
or recklessly inflicted injuries). In Kawaauhau, the Court examined the language of Section 523(a)(6)
and concluded the provision applies to “acts done with the actual intent to cause injury,” but excludes
intentional acts that cause injury. Id. at 61, 118 S.Ct. at 977. “Willful,” as used in the provision,
“modifies the word ‘injury,’ indicating that nondischargeability takes a deliberate or intentional injury,
not merely a deliberate or intentional act that leads to injury.” Id. The Court also noted that the
language of Section 523(a)(6) mirrors the definition of an intentional tort, which requires an actor
to “intend ‘the consequences of an act,’ not simply ‘the act itself.’” Id. at 61-62, 118 S.Ct. at 977
(citing Restatement (Second) of Torts § 8A, cmt. a (1964) and adding emphasis).
Applying the Supreme Court’s pronouncement that Section 523(a)(6) requires actual intent
to cause injury, the Fifth Circuit has held that for a debt to be nondischargeable, a debtor must have
acted with “objective substantial certainty or subjective motive” to inflict injury. Miller v. J. D.
Abrams, Inc. (In re Miller), 156 F.3d 598, 603 (5th Cir. 1998). Despite similarities in the language
used to describe an injury under Section 523(a)(6) and intentional torts, Section 523(a)(6) creates a
narrower category of tortious conduct. Id. at 604 (noting, “Merely because a tort is classified as
intentional does not mean that any injury caused by the tortfeasor is willful.”).
Turning to the meaning of “malicious,” the Miller court concluded Section 523(a)(6) creates
an “implied malice standard.” Id. at 605. A debtor acts with implied malice when he acts “with the
actual intent to cause injury.” Id. at 606 (citation omitted). This definition of implied malice is
identical to the Kawaauhau Court’s explanation of a willful injury. Id. (citing Kawaauhau, 533 U.S.
at 61-62, 118 S.Ct. at 977). The test for willful and malicious injury under Section 523(a)(6), thus,
is condensed into a single inquiry of whether there exists “either an objective substantial certainty of
harm or a subjective motive to cause harm” on the part of the debtor. Id. See also Texas v. Walker,
6
142 F.3d 813, 823 (5th Cir. 1998) (stating “‘for willfulness and malice to prevent discharge under
Section 523(a)(6), the debtor must have intended the actual injury that resulted . . . . ‘Intent to injure
may be established by showing that the debtor intentionally took action that necessarily caused, or
was substantially certain to cause, the injury.’” (citing In re Delaney, 97 F.3d 800, 802 (5th Cir.
1996)).
The Kawaauhau Court rejected a broader construction of Section 523(a)(6) that would make
debts from intentional acts that cause unintended or unanticipated injuries nondischargeable in
bankruptcy. Id. at 62, 118 S.Ct. 977. Such an interpretation would be contrary to the notion that
exceptions to discharge “‘should be confined to those plainly expressed.’” Id. (citing Gleason v.
Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed. 717 (1915)). As an example of an intentional
act resulting in unintended or unanticipated injury, the Court cited a knowing breach of contract. Id.
With this brief mention of a knowing breach of contract, the Kawaauhau opinion seems to reject the
proposition that a debt arising from a knowing breach of contract is a willful and malicious injury
excepted from discharge.
The holdings in Kawaauhau, Miller, and Walker indicate that a debtor m ust commit an
intentional or substantially certain injury in order to be deprived of a discharge. A debt is not
excepted from discharge if the debtor has committed a willful or knowing act. The dischargeability
of Williams’s two debts to the Union, therefore, depends upon the intentional or certain nature of the
injury Williams inflicted upon the Union when he breached the CBA and defied the Agreed Judgment.
7
III.
Williams seizes upon the reference to a knowing breach of contract in Kawaauhau and urges
this court to adopt a construction of Section 523(a)(6) t hat would render nondischargeable only
contractual debts accompanied by separate tortious conduct. Because the debts resulted from
breaches o f the Union contract, Williams contends the debts are not within the scope of Section
523(a)(6) and should be discharged. The Union posits that the Fifth Circuit’s application of
Kawaauhau compels a finding of nondischargeability because Williams was substantially certain that
his failure to abide by the CBA and the Agreed Judgment would cause injury.
The Fifth Circuit has acknowledged that a breach of contract may involve an intentional or
substantially certain injury. See Walker, 142 F.3d at 823 (1998); Miller, 156 F.3d at 606. In Walker,
the debtor committed the tort of conversion by keeping professional fees instead of remitting them
to his employer, the University of Texas, in violation of his employment contract. Walker, 142 F.3d
at 824. The court found that Section 523(a)(6) did not prevent discharge of the debt. The record
did not show that the debtor, who admitted his acts were intentional, understood his contractual
obligations and knowingly retained professional fees with the intent of depriving his employer of
revenue. Id. The Walker court did note, “[i]f a factfinder were to decide that [the debtor] knew of
his obligations under the . . . contract . . . then [a factfinder] might also find that [the debtor]
knowingly retained his professional fees in violation of the [contract], an act which he knew would
necessarily cause the University’s injury. This, in turn, could result in a finding of ‘willful and
malicious injury.’” Id. Maintaining the distinction between an injury under Section 523(a)(6) and
an intentional tort, the Walker opinion did not find a willful and malicious injury was inflicted by the
8
debtor’s conversion of professional fees. Rather, Walker suggests that a knowing breach of a clear
contractual obligation that is certain to cause injury may prevent discharge under Section 523(a)(6),
regardless of the existence of separate tortious conduct.
Assessing the dischargeability of another employment-related debt, the Fifth Circuit held that
a debtor who misappropriated proprietary information and misused trade secrets could be precluded
from obtaining a discharge under Section 523(a)(6) if the debtor’s “actions were at least substantially
certain to result in injury” to his employer. Miller, 156 F.3d at 601, 606. Although the debtor’s
actions constituted larceny per se and were excepted from discharge by Section 523(a)(4), the court
remanded the case for a determination of the debtor’s intent or objective certainty to cause injury.
Id. at 606. Like Walker, the Miller decision suggests that the dischargeability of contractual debts
under Section 523(a)(6) depends upon the knowledge and intent of the debtor at the time of the
breach, rather than whether conduct is classified as a tort or falls within another statutory exception
to discharge.
Accepting that Section 523(a)(6) excepts contractual debts from discharge when those debts
result from an intentional or substantially certain injury, our inquiry now focuses upon the nature of
the injury Williams inflicted upon the Union. The record reflects that when Williams hired non-union
electricians in violation of the CBA, he was motivated by a desire to complete the Eckerd project and
to save his business. Although Williams acted intentionally, he did not intend to injure the Union.
Whether Williams’s knowing breach of the CBA was substantially certain to injure the Union
is a more difficult call. At oral argument, counsel for the Union suggested that Williams was
substantially certain of three types of injury: injury to the Union electricians who were deprived of
employment, injury to the non-union electricians who were paid at a lower, non-union rate while
9
working for Williams, and injury to the Union’s prestige and its ability to enforce its contracts. The
record also indicates that Williams discontinued making payments to the Union pension and vacation
funds when he stopped using Union electricians in the fall of 1999. Of these alleged injuries, only one
was actually sustained by the Union itself. The deprivation of employment opportunities and the
failure to contribute to Union pension and vacation funds affected individual Union electricians. None
of the affected Union electricians, however, is a party to this suit. The payment of below-Union-scale
wages affected electricians without any connection to the Union; the Union cannot assert any injury
the non-union electricians sustained. The only direct injuries to the Union were to its prestige and
to its ability to uphold its contracts.
There is no indication in the record that Williams, by breaching the CBA, was substantially
certain the Union would sustain a blow to its prestige and its ability to uphold its contracts. Williams
did know Union electricians would be deprived of employment opportunities and concomitant salaries
and benefits if he hired non-union workers for the Eckerd and other commercial projects. Although
this injury was substantially certain to occur, it was not inflicted upon the Union.
To the extent that the debts to the Union were determined to be nondischargeable as
substantially certain injuries arising from violations of the CBA, we reverse the district court.
Although previous decisions by this circuit hold that injuries resulting from a knowing breach of
contract may be nondischargeable under Section 523(a)(6), those decisions also require explicit
evidence that a debtor’s breach was intended or substantially certain to cause the injury to the
creditor. There has been no showing of an intentional or substantially certain injury to the Union.
The issue of Williams’s violation of the Agreed Judgment and its treatment under Section
523(a)(6) remains.
10
IV.
Each party attempts to characterize Williams’s debts to the Union in a different manner.
Williams argues that because all of the damages were based upon violations of the CBA, both debts
should be considered contract damages. The Union, conversely, maintains that both debts should be
characterized as damages arising from the violation of the Agreed Judgment. The characterization
of the debts as resulting from breaches of the CBA or of the Agreed Judgment affects
dischargeability under Section 523(a)(6).
In its Judgment dated 25 April 2000, the district court found that Williams had purposefully
and willfully violated the Agreed Judgment of 14 December 1999. At the contempt hearing, Williams
admitted that he had notice of the Agreed Judgment and that it was clear and unambiguous, that he
had continued to use non-union electricians on commercial projects, and that he had not yet paid the
restitution for his earlier breach of the CBA. The district court found Williams in contempt and
imposed sanctions, which included attorney’s fees and additional restitution. A second audit was
performed for the period between the entry of the Agreed Judgment in December of 1999 and the
contempt hearing in April of 2000. This audit revealed Union electricians had been deprived of
$106,911.43 in wages and benefits when Williams hired non-union workers. From the record, it
appears that the attorney’s fees incurred in the contempt hearing are included in this figure.
At the discharge hearing, the bankruptcy court stated that the $106,911.43 constituted
damages from a willful and malicious injury. This amount was assessed against Williams for failing
to abide by the Agreed Judgment. The bankrupt cy court found that Williams had clearly violated
Section 523(a)(6) when he broke his promise to the district court to comply with the CBA. The fact
that this promise had been made by Williams to the district court and was sanctioned by the Agreed
11
Judgment and Decree elevated the injury to a willful and malicious level. As a sanction for contempt
of the district court’s order, the $106,911.43 was determined to be excepted from discharge.
Other bankruptcy courts have held that a contempt judgment against a debtor in bankruptcy
is immune from discharge under Section 523(a)(6). Failure to obey a court order constitutes willful
and malicious conduct, and a judgment against a defiant debtor is excepted from discharge. PRP
Wine Internat’l v. Allison (In re Allison), 176 B.R. 60, 64 (Bankr. S.D. Florida 1994) (denying
discharge to a debtor who continued to breach a non-competition clause in an employment agreement
after a state court issued a temporary injunction). Another bankruptcy court has explained:
. . . [W]hen a court of the United States . . . issues an injunction or other protective
order telling a specific individual what actions will cross the line into injury to others,
then damages resulting from an intentional violation of that order as is proven either
in the Bankruptcy Court or, so long as there was a full and fair opportunity to litigate
the questions of volition and violation, in the issuing court are ipso facto the result of
a “willful and malicious injury.”
This is because what is “just” or “unjust” conduct as between the parties has
been defined by the court . . . . An intentional violation of the order is necessarily
without “just cause or excuse” and cannot be viewed as not having the intention to
cause the very harm to the protected persons that order was designed to prevent.
Buffalo Gyn Womenservices, Inc. v. Behn (In re Behn), 242 B.R. 229, 238 (Bankr. W.D. N.Y.
1999).
While the Behn opinion deals specifically with the violation of an injunction, the Agreed
Judgment entered by the district court served a similar purpose of protecting the Union from further
breaches of the CBA. See id. at 238-39. The Agreed Judgment clearly and unambiguously informed
Williams that the use of non-union electricians on commercial projects was forbidden. Williams knew
of his obligations under the CBA, yet he knowingly violated those obligations. Even if Williams did
not intend to injure the Union, the Agreed Judgment made him substantially certain that his acts
12
would inflict injury. The bankruptcy court properly found t hat Williams’s violation of the Agreed
Judgment resulted in a willful and malicious injury.
Williams’s argument advocating discharge of the damages for contempt overlooks the fact
that the $106,911.43 assessed by the district court arose from Williams’s defiance of the Agreed Final
Judgment and Decree. Williams’s breach of the CBA after the entry of the Agreed Judgment is not
simply a failure to honor a contractual obligation; this breach is also a violation of a court’s order.
Contempt may be characterized as an act resulting in intentional injury. As such, the debt incurred
from the violation of the Agreed Judgment is nondischargeable under Section 523(a)(6).
The Union takes the position on appeal that the initial debt of $155,855.39 stems from the
contempt order and also should be excepted from discharge. The bankruptcy court held otherwise.
The $155,855.39 represents damages that preceded the entry of the Agreed Judgment. The
bankruptcy court declined to find that this debt constituted damages resulting from Williams’s
violation of the district court’s order. Instead, the bankruptcy court determined that the initial debt
resulted from the violation of the CBA and that there was no evidence that Williams intended to
violate a court order at the time this debt was incurred. The conclusion of the bankruptcy court is
not clearly erroneous. We agree that the initial debt arising from the breach of the CBA does not
qualify as a willful and malicious injury under Section 523(a)(6) and is therefore dischargeable.
V.
The bankruptcy court’s factual finding that the debts of $155,855.39 and $106,911.43 stem
from two different injuries supports the conclusion that these two debts must be treated differently
under Section 523(a)(6). Because there is no indication that Williams intended or was substantially
13
certain to injure the Union when he initially violated the CBA, we hold that the first debt of
$155,855.39 does not arise from a willful and malicious injury; Section 523(a)(6) does not except this
debt from discharge. We hold, furthermore, the second debt of $106,911.43 arises from the willful
and malicious injury Williams inflicted by refusing to obey the Agreed Judgment and is excepted from
discharge under Section 523(a)(6).
Accordingly, the decision of the district court is REVERSED in part and AFFIRMED in part.
14
CARL E. STEWART, Circuit Judge, concurring in part, dissenting in part:
One of the pivotal questions before the Court is whether the debt incurred by Williams in the
amount of $155,855.39 as a result of his breach of the co llective bargaining agreement is
nondischargeable under 11 U.S.C. § 523(a)(6). The bankruptcy judge held that the debt was
nondischargeable because it resulted from willful and malicious injury. The majority reverses that
determination, finding that the debt is subject to discharge because it does not arise from a willful and
malicious injury. For the following reasons, I concur in part and dissent in part with respect to the
majority’s determination.4 Prior to determining whether Williams’s breach of the collective
bargaining agreement resulted from willful and malicious conduct, the majority was faced with the
question of whether a knowing breach of contract, unaccompanied by an independent intentional tort,
falls within the exception to discharge under § 523(a)(6). The majority held that a debt arising out
a knowing breach of contract is subject to exception to discharge under §523(a)(6) when the debt
results from an intentional or substantially certain injury. I concur in the majority’s holding, which,
in my view flows naturally from the language of § 523(a)(6) and this Court’s interpretation of the
statute.
Section 523(a)(6) excepts from discharge any debt “for willful and malicious injury by the
debtor to another entity or to the property of another entity.” In Kawaauhau v. Geiger, the Supreme
Court held that a “willful and malicious injury” results from an act done with the actual intent to cause
4
I also concur in the majority’s determination that the debt arising from Williams’s violation of the
Agreed Judgment in the amount of $106,911.43 is nondischargeable.
15
injury.5 523 U.S. 57, 61 (1998). In Texas v. Walker, we stated that an “intent to injure may be
established by a showing that the debtor intentionally took action that necessarily caused, or was
substantially certain to cause, the injury.” 142 F.3d 813, 823 (5th Cir. 1998) (quoting In re Delaney,
97 F.3d 800, 802 (5th Cir. 1996)). Thus, if a debtor acts with an actual intent to cause injury, the
debt is nondischargeable under § 523(a)(6), notwithstanding that the underlying indebtedness may
have derived from a contractual relationship between the parties.
I agree wit h the majority that the inquiry for determining whether a debt is excepted from
discharge should focus on the nature of the conduct – whether the debt arose out a willful and
malicious injury - and not on whether the conduct is accompanied by an independent tort. 6 This
Court’s decision in Walker supports this view. In Walker, the State of Texas brought suit against a
university professor for conversion and breach of contract alleging that he improperly retained
professional fees in violation of his contract with the university. Although the defendant admitted that
5
In Geiger, the Supreme Court, in determining the scope of the willful and malicious injury
exception, noted that the § 523(a)(6) “formulation triggers in the lawyer’s mind the category ‘intentional
torts,’ as distinguished from reckless torts.” 523 U.S. at 61. The Supreme Court further noted that ‘intentional
torts generally require that the actor intend ‘the consequences of an act,’ not simply ‘the act itself.’” Id. at 61-
62. The Supreme Court rejected the petitioner’s encompassing interpretation of § 523(a)(6) that would make
debts from intentional acts that cause unintended or unanticipated injuries nondischargeable in bankruptcy.
Id. The Supreme Court cited “a knowing breach of contract” as an example of conduct that would fall within
this category. Thus, section 523(a)(6) has been interpreted as generally applying to intentional torts and not
to contracts.
6
I should note that this conclusion has been rejected by the Ninth Circuit. In In re Riso, a pre-Geiger
decision, the Ninth Circuit h eld that “a simple breach of contract is not the type of injury addressed by §
523(a)(6)” and that “an intentional breach of contract is excepted from discharge under § 523(a)(6) only when
it is accompanied by malicious and willful tortious conduct.” 978 F.2d 1151, 1154 (9th Cir. 1992) (emphasis
added). In In re Jerich, a post-Geiger decision, the Ninth Circuit again held that “although § 523(a)(6)
generally applies to torts rather than to contracts and an intentional breach of contract generally will not give
rise to a nondischargeable debt, where an intentional breach of contract is accompanied by tortious conduct
which results in willful and malicious injury, the resulting debt is excepted from discharge under § 523(a)(6).”
238 F.3d 1202, 1205 (9th Cir. 2001) (emphasis added). In In re Colcazier, the Bankruptcy Court for the
Western District of Oklahoma also held that that § 523(a)(6) exempts from discharge only damages from
tortious breaches of contract. 134 B.R. 29, 33 (Bankr. W.D.Okl. 1991) (emphasis added).
16
he acted intentionally when he kept the professional fees, the district court determined that the fees
were dischargeable under § 523(a)(6) because it found that “Walker’s retention of his professional
fees was an innocent and technical act, rather than a willful and malicious injury.” 142 F.3d at 824.
This Court reversed the district court’s determination because it found that an “issue of fact exists
regarding whether Walker was aware of his obligations under the contract and nonetheless knowingly
kept his professional fees with the intent of depriving the University of money owed to it.” Id. The
Court remanded the case with the following instruction: “If a fact finder were to decide that Walker
knew of his obligations under the [] contract and its by-laws, either at the time he signed the contract
or received the November 1990 memorandum, then it might also find that Walker retained his
professional fees in violation of the [contract], an act he knew would cause the University injury.”
Id. In Walker, this Court focused on the willful and malicious nature of the university professor’s
conduct in breaching his contract with the university. Thus, in line with Walker and the plain
language of the statute, I concur in the majority’s holding that § 523(a)(6) excepts contractual debts
from discharge when those debts result from an intentional or substantially certain injury.
I respectfully dissent, however, from the majority’s conclusion that Williams’s intentional
breach of the collective bargaining agreement was not substantially certain to cause injury to the
Union. The bankruptcy judge found that by breaching the collective bargaining agreement, Williams
was substantially certain that he would deprive union electricians of employment opportunities and
concomitant benefits. Specifically, the bankruptcy judge stated that “it’s clear through his testimony,
Mr. Williams took the action in the fall of ‘98 of simply deciding to ignore the contract and not calling
the Union hall any more and to use non-Union workers to finish the Union jobs in violation of his
contract . . . and he did so at a time in which he knew that doing so would deprive Union workers
17
of jobs and benefits and that he knew that would be an injury.” It should be noted that neither party
contests the bankruptcy judge’s factual findings. In fact, Williams’s counsel specifically conceded
during oral argument that he did not disagree with the bankruptcy judge’s factual findings regarding
the injury to the Union. Moreover, Williams’s testimony is proof that he was substantially certain that
injury would result from his breach of the collective bargaining agreement:
Q. . . .by not contacting the Union hall, you knew that electricians would,
therefore, not have the opportunity - - - electricians from the Union
Hall would not have the opportunity to work for you.
A. True.
Q. Now, when you ceased - - when you decided to cease following the
Union contract, you also ceased paying the Union scale. Isn’t that
true?
A. Yes.
Q. And you unilaterally set a lower wage scale for most of your hands.
Correct?
A. Yes, back to the open shop scale.
Q. All right. And approximately, on the average, how much lower was
the wage scale that you began paying when you ceased using the
Union contract?
A. Maybe 10 to 12 an hour.
Q. All right. And the Union - - under the Union contract, the wage scale
for a journeyman was around 20 an hour, wasn’t it?
A. Yes, sir.
Q. And so the electricians that worked for you after you ceased honoring
the Union contract were being paid by you 10 to $12 an hour instead
of approximately $20 an hour as is called for in the Union contract.
A. Yes . . .
Q. Okay. So I want to understand your question. When you stopped
following the Union contract you also ceased contributing to the
Union pension fund, didn’t you?
A. I had paid everything in as per the agreement while I was using the
Union workers.
Q. All right.
A. After that it all ceased, yes.
Q. You ceased paying - - all right. And so you knew that - - when you
ceased using the Union contract and you ceased paying into the Union
pension plan you knew that the workers who were working for you
18
would not be accruing any pension benefits under the Union pension
plan. You knew that, didn’t you?
A. Yes.
Q. You also ceased contributing to the Union vacation fund. Correct?
A. Yes.
Q. And you knew that the workers would therefore no longer be accruing
any benefits under that.
A. Yes.
In my view, the bankruptcy judge’s factual findings determine the resolution of this issue. The
majority’s attempt to find error in the bankruptcy judge’s factual findings by separating the harm
suffered by the union-workers from the Union is completely unpersuasive. In this case, Williams
breached the collective bargaining agreement that he entered into with the Union; and, by doing so,
he was subst antially certain that the Union and its members would be injured. As the bankruptcy
judge stated “[Williams] took actions that he knew were wrong, and he knew that there was a
substantial certainty that the actions would result in harm to the Union, since he just admitted to the
Court that the same thing he had done before that time had [] that effect.” Because I conclude that
the Union was injured when its members were deprived of employment opportunities and
concomitant benefits by Williams hiring of nonunion labor, I would affirm the bankruptcy court’s
determination that the $155,855.39 was nondischargeable.
19
| {
"pile_set_name": "FreeLaw"
} |
30 F.3d 298
146 L.R.R.M. (BNA) 2933
UNITED FOOD & COMMERCIAL WORKERS UNION, LOCAL 919, AFL-CIO,Plaintiff-Appellant,v.CENTERMARK PROPERTIES MERIDEN SQUARE, INC., HO MeridenSquare Development Co., doing business as H. Co. May CentersMeriden Square Partnership, and The May Department StoresCo., doing business as Filene's, Defendants-Appellees.
No. 1332, Docket 93-9147.
United States Court of Appeals,Second Circuit.
Argued April 20, 1994.Decided July 12, 1994.
Harry B. Elliott, Hartford, CT (J. William Gagne, Jr., Gregory C. Norsigian, Gagne & Associates, of counsel), for appellant.
Eric Hemmendinger, Baltimore, MD (Stephen D. Shawe, Shawe & Rosenthal, of counsel), for appellee May Dept. Stores Co.
Benjamin A. Lipman, St. Louis, MO (John J. Moellering, Lewis, Rice & Fingersh, of counsel), for appellees CenterMark Properties Meriden Square and HO Meriden Square Development Co.
Before: MESKILL, ALTIMARI and McLAUGHLIN, Circuit Judges.
MESKILL, Circuit Judge.
1
This dispute arises from a ban on union picketing and leafleting at a privately owned shopping mall during a campaign by plaintiff-appellant United Food and Commercial Workers Union, Local 919, AFL-CIO (Union) to organize workers at a Filene's department store located on mall property. In an effort to remove the restrictions on leafleting and picketing, the Union filed an action in Connecticut Superior Court for injunctive relief pursuant to Art. 1, Secs. 4 and 5 of the Connecticut Constitution against the owners of the mall property, defendants-appellees CenterMark Properties Meriden Square, Inc. and HO Meriden Square Development Co., collectively d/b/a Meriden Square Partnership (Meriden Square), and defendant-appellee May Department Stores Co., d/b/a Filene's (May), the owner and manager of the Filene's department store, whose employees the Union seeks to organize. May, with the consent of Meriden Square, removed the action to the United States District Court for the District of Connecticut, Covello, J., and then May and Meriden Square (collectively "defendants") moved to dismiss it for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). The district court granted dismissal.
2
On appeal, the Union, for the first time, raises the propriety of federal subject matter jurisdiction and urges us to return the action to state court for a ruling on the merits. Because we conclude that a resolution of the jurisdictional issue requires further findings and because we believe that the district court should be given an opportunity to resolve the jurisdictional issue, we vacate the judgment and remand the matter to the district court for further proceedings.
BACKGROUND
3
The complaint alleges, inter alia, that the Union is a labor organization within the meaning of Conn.Gen.Stat. Sec. 31-77 with a principal place of business in Farmington, Connecticut. Defendant May is a corporate entity with its principal place of business in St. Louis, Missouri. Meriden Square is a partnership between defendant CenterMark Properties Meriden Square, Inc., a corporate entity with a principal place of business also in St. Louis and defendant HO Meriden Square Development Co., a corporate entity with a principal place of business in Chicago, Illinois.
4
The Union has been attempting to organize non-union employees who work at a Filene's department store (Filene's). Filene's is owned and operated by May and located at the Meriden Square Mall (Mall). The Mall, a large retail shopping complex located in Meriden, Connecticut, is owned by Meriden Square. As part of the Union's organizing efforts, its members and staff distribute literature, display placards or signs, and engage in verbal communication.
5
On June 11, 1993, Joseph Mahar (Mahar), Filene's general manager, informed the Union that Filene's prohibited non-employees from distributing literature or otherwise soliciting support on the Union's behalf on Filene's property, property that includes the sidewalks and access ways immediately adjacent to the Filene's building. In a letter dated June 21, 1993, moreover, Meriden Square notified the Union that its distribution and solicitation activities were prohibited on Mall property absent prior approval by Meriden Square. As a result of these prohibitions, the Union has been denied access to Mall property for the purposes of carrying out its distribution and solicitation activities.
6
The Union alleges that because the Mall is the largest retail shopping center in Meriden, it has assumed a uniquely public character and, thus, is subject to the free speech requirements of Art. 1, Secs. 4 and 5 of the Connecticut Constitution. In an effort to vindicate its purported right to freedom of speech thereunder, the Union filed suit in Connecticut Superior Court seeking a temporary and permanent injunction enjoining May and Meriden Square from prohibiting the Union from engaging in its solicitation and leafleting campaign on Mall property.
7
On July 28, 1993, May, with the consent of Meriden Square, removed the action to federal court. The notice of removal asserted that the requirements for both diversity jurisdiction and federal question jurisdiction were met. With respect to diversity jurisdiction, the notice of removal asserted that there was complete diversity of citizenship among the parties and that the amount in controversy exceeded $50,000. As to federal question jurisdiction, the notice of removal asserts that the Union's cause of action is preempted by federal labor law.
8
May and Meriden Square then moved to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim under the Connecticut Constitution. The Union opposed the motion on the merits but did not file a motion to remand the case to state court for lack of federal jurisdiction pursuant to 28 U.S.C. Sec. 1447(c). The district court granted defendants' motions. Specifically, the court found the Union's claim to be identical to claims previously rejected by the Connecticut Supreme Court, see Cologne v. Westfarms Assocs., 192 Conn. 48, 469 A.2d 1201 (1984), as well as the federal courts, see United Food & Commercial Workers Union, Local 919, AFL-CIO v. Lechmere, Inc., 682 F.Supp. 15 (D.Conn.1988). The court reasoned that, although the Connecticut Supreme Court was divided on the issue of whether the Connecticut Constitution gives advocacy groups the right to demonstrate or handbill on private property, including shopping malls, the majority's decision that it did not was fatal to the Union's cause of action. The court noted, moreover, that only the Connecticut Supreme Court had the authority to revisit its decision in Cologne. Accordingly, the district court dismissed the complaint for failure to state a claim and final judgment entered on October 8, 1993.
This appeal followed.DISCUSSION
9
On appeal, the Union argues for the first time that the district court lacked subject matter jurisdiction. Specifically, it contends that no basis exists for the assertion of federal jurisdiction over this action because the complaint raises neither a federal question nor provides a basis for diversity jurisdiction. Thus, the Union now asks us to determine whether this action, which it filed in state court, belongs in federal court despite its failure to challenge the removal to the district court via a motion to remand pursuant to 28 U.S.C. Sec. 1447(c).
10
The failure of the parties to contest the district court's authority to hear a case "does not act to confer [federal] jurisdiction ... since a challenge to subject matter jurisdiction cannot be waived and may be raised sua sponte by ... a federal appellate court." Alliance of Am. Insurers v. Cuomo, 854 F.2d 591, 605 (2d Cir.1988); see also 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure Sec. 1350, at 202-05 (1990) (Wright & Miller). Indeed, our cases make clear that "[i]t is common ground that in our federal system of limited jurisdiction any party or the court sua sponte, at any stage of the proceedings, may raise the question of whether the court has subject matter jurisdiction." Manway Constr. Co. v. Housing Auth. of Hartford, 711 F.2d 501, 503 (2d Cir.1983). Where jurisdiction is lacking, moreover, dismissal is mandatory. Id. We must, therefore, entertain the Union's jurisdictional challenge regardless of its unexplained failure to raise the issue with the district court in a motion to remand pursuant to 28 U.S.C. Sec. 1447(c).
11
To that end, the party asserting jurisdiction bears the burden of proving that the case is properly in federal court and that party may not "be relieved of [its] burden by any formal procedure." McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); see also In re Joint E. & S. Dist. Asbestos Litig., 14 F.3d 726, 730 (2d Cir.1993). Thus, "[i]f [the averring party's] allegations of jurisdictional facts are challenged by [its] adversary in any appropriate manner, [the averring party] must support them by competent proof." McNutt, 298 U.S. at 189, 56 S.Ct. at 785 (emphasis added). Where, as here, jurisdiction is asserted by a defendant in a removal petition, it follows that the defendant has the burden of establishing that removal is proper. See R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir.1979); see also 14A Wright & Miller Sec. 3721, at 209-10 ("[d]efendant always has the burden of establishing that removal is proper").
12
Applying these principles, we must determine from the record before us whether the defendants can establish a basis for either diversity or federal question jurisdiction. See 14A Wright & Miller Sec. 3723, at 311-12 (usual rule is that removability is determined from the record as of the time the petition for removal is filed but where basis of removal is diversity then diversity of citizenship must exist at time action was filed in state court as well as at time of removal).
A. Diversity Jurisdiction
13
Diversity jurisdiction is conferred upon the district courts in "civil actions where the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs, and is between[,]" inter alia, "citizens of different States." 28 U.S.C. Sec. 1332(a)(1) (emphasis added).
14
Here, the Union concedes that diversity of citizenship exists in this case and challenges only the defendants' assertion in its removal petition that the amount in controversy exceeds $50,000. In light of our independent duty to examine our jurisdiction, see FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990); Clark v. Paul Gray, Inc., 306 U.S. 583, 588, 59 S.Ct. 744, 748, 83 L.Ed. 1001 (1939); Thompson v. County of Franklin, 15 F.3d 245, 248 & n. 3 (2d Cir.1994), however, the Union's concession, when taken in light of the record before us, is not dispositive of whether this controversy is between "citizens of different States" where, as here, the Union is an unincorporated association for purposes of determining its citizenship. See United Steelworkers of America, AFL-CIO v. R.H. Bouligny, Inc., 382 U.S. 145, 152-53, 86 S.Ct. 272, 275-76, 15 L.Ed.2d 217 (1965). Accordingly, we examine the diversity of the parties' citizenship as well as the amount in controversy.
1. Diversity of Citizenship
15
The notice of removal avers that there is complete diversity of citizenship because defendants are corporate citizens of Missouri and Illinois respectively and because "[t]he Plaintiff in this action [the Union] is a citizen of Connecticut." A review of the record, however, provides no basis for this or any conclusion about the Union's citizenship for purposes of determining the propriety of diversity jurisdiction in this case.
16
The Union avers in its complaint that it is a labor organization within the meaning of Conn.Gen.Stat. Sec. 31-77 whose principal place of business is Farmington, Connecticut. Thus, the removal petition on its face treats the Union as a corporate entity for purposes of determining its citizenship in this action.
17
The parties conceded at oral argument, however, that the Union is not a corporate entity but an unincorporated association. Furthermore, defendants conceded that the record contains no evidence to support the claim of complete diversity of citizenship between the parties if the Union is viewed as an unincorporated association rather than as a single corporate entity.
18
Here, the distinction between a corporate entity and an unincorporated association is significant. Unlike a corporate entity whose citizenship is determined by its place of incorporation or its principal place of business, the citizenship of an unincorporated association, such as a labor organization, is determined by the citizenship of each of its members. United Steelworkers, 382 U.S. at 146-47, 86 S.Ct. at 272-73; Loss v. Blankenship, 673 F.2d 942, 949 (7th Cir.1982) ("[t]he citizenship of a union for diversity purposes is the citizenship of each of its members"). Thus, treating the Union as an unincorporated association alters the focus of the diversity inquiry in this case.
19
Admittedly, the Union in this case is a local affiliate of the United Food and Commercial Workers, AFL-CIO (International), an international labor organization. Although this particular record is silent as to the geographic composition of its membership, we suspect that the International has members in many states, if not all fifty states, including Missouri and Illinois. Thus, were we to consider the membership of the International, it is likely that there would be no diversity of citizenship between these parties.
20
Where the injury alleged in the complaint is a "particularized one," affecting only the workers of a local union, however, a federal court may look exclusively to the citizenship of the local's membership to determine citizenship. See, e.g., Loss, 673 F.2d at 949. Such an approach is appropriate here since "[t]his is not a situation where a local is representing its international in order to establish favorable jurisdiction." Id. Rather, we believe that the matters at issue here concern primarily the membership of the Union, not that of the International. We, therefore, "see no reason to look beyond the citizenship of [the Union's] members in determining diversity." Id.
21
In any event, defendants do not aver in their notice of removal that complete diversity of citizenship exists between each member of the Union and defendants, May and Meriden Square. Defendants, moreover, have provided no affidavits, documents or other evidence to support a finding that complete diversity of citizenship exists between each member of the Union and the defendants. While we would be surprised if the Union had any members who were commuting to work from their residences in Missouri or Illinois, we are not free to speculate on the citizenship of each of the Union's members in the complete absence of any evidence regarding members' citizenship. On this record, therefore, we believe it prudent to remand the issue and thereby allow the parties to supplement the record on the issue of each Union member's citizenship and allow the district court to make an initial determination as to whether complete diversity of citizenship exists in this case. See Harvey Constr. Co. v. Robertson-Ceco Corp., 10 F.3d 300, 304 (5th Cir.1994) (remanding issue of citizenship to district court for further findings where appellate court was unable to determine diversity of citizenship from the record); Prakash v. American Univ., 727 F.2d 1174, 1181 (D.C.Cir.1984) (remanding diversity of citizenship issue for evidentiary hearing where district court based its finding of diversity on conclusory documentary submissions).
2. Amount in Controversy
22
Citizenship notwithstanding, the Union does challenge defendants' assertion in the notice of removal that the amount in controversy exceeds the jurisdictional minimum of $50,000. In response, defendants offer two theories as to why the amount in controversy requirement has been satisfied in this case. First, defendants contend that, by failing to challenge the amount in controversy in the district court on a motion to remand, the Union has conceded the issue. That concession, defendants argue, relieves them of their burden in this appeal of establishing that the amount in controversy exceeds the statutory minimum. Second, assuming that the Union has not waived the issue, defendants argue nonetheless that the Union's pleadings are sufficient to establish that the amount in controversy exceeds $50,000 for jurisdictional purposes. We find neither argument persuasive.
23
a. Waiver
24
The crux of defendants' waiver claim is that by failing to raise the sufficiency of the amount in controversy in the district court in a timely motion to remand pursuant to section 1447(c), the Union has conceded the validity of defendants' factual assertion of the amount in controversy set forth in the removal petition. Although defendants acknowledge that diversity jurisdiction cannot be waived per se, they seek to characterize the amount in controversy inquiry as a factual rather than legal predicate to jurisdiction. As such, defendants ask us to hold that the Union has conceded any dispute over the value of its action because it failed to contest defendants' factual assertion that the amount in controversy exceeds the statutory minimum in the district court. We decline.
25
Federal courts are courts of limited jurisdiction whose power is limited strictly by Article III of the Constitution and congressional statute. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986). Indeed, "the subject matter jurisdiction of the federal courts is too basic a concern to the judicial system to be left to the whims and tactical concerns of the litigants." 13 Wright & Miller Sec. 3522, at 67-68. Litigants, therefore, cannot waive subject matter jurisdiction by express consent, conduct, or estoppel because they "fail[ ] to challenge jurisdiction early in the proceedings." Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2105, 72 L.Ed.2d 492 (1982).
26
A harsh consequence of this principle is that a party who is unhappy with the result achieved in the district court may challenge jurisdiction on appeal, even if that party failed to challenge jurisdiction below. See, e.g., American Fire & Casualty Co. v. Finn, 341 U.S. 6, 16-18, 71 S.Ct. 534, 541-42, 95 L.Ed. 702 (1951) (remanding case to state court where petitioner successfully challenged diversity of citizenship on appeal after removing action and then losing on the merits in the district court).
27
Admittedly, the application of this principle does not always yield the most sensible regulation of procedure where, as here, the "whim" of the litigants may have led the district court to reach a decision on the merits. The rule that a party who loses below on the merits nevertheless may challenge jurisdiction on appeal, however, is justified "in terms of the delicate problems of federal-state relations that are involved." 13 Wright & Miller Sec. 3522, at 68-69.
28
Such concerns are particularly prominent here, where the Union seeks to vindicate a free speech right under the Connecticut Constitution, a realm of law in which the Connecticut courts are supreme. The Union, moreover, seeks to extend that state constitutional right beyond any domain heretofore recognized by the Connecticut Supreme Court. But cf. Cologne, 192 Conn. at 66-85, 469 A.2d 1201 (Peters, J., dissenting). As such, this strikes us as a particularly inappropriate case for the creation of an even limited exception to the settled rule that the parties cannot concede jurisdictional facts. Accordingly, we decline to hold that the Union has waived its right to challenge for the first time in this litigation the defendants' assertion of the amount in controversy set forth in the notice of removal.
29
In support of their position, defendants offer us Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir.1993). In Shaw, the Seventh Circuit held that a plaintiff who challenged the amount in controversy for the first time on appeal during oral argument was deemed to have "conceded that his claim is worth more than $50,000 [ ] by not contesting removal when the motion was originally made, and by jurisdictional statements to this Court in his first brief." 994 F.2d at 367-68. Crucial to the majority's decision in Shaw was plaintiff's jurisdictional statement and opening brief to the court that "stated blithely" that both the citizenship and amount in controversy requirements of diversity jurisdiction were satisfied. Id. at 366. Indeed, in Shaw, it was only after questioning from the panel at oral argument that plaintiff retracted his prior assertions that the amount in controversy exceeded the $50,000 minimum and "took up the jurisdictional issue with a vengeance ... that his complaint [was] worth less than the $50,000 threshold." Id. The court reasoned that to allow a plaintiff to " 'reduce the amount of his demand to defeat federal jurisdiction,' " no matter how bona fide his original demand in state court, would render a defendant's statutory right to removal " 'subject to the plaintiff's caprice.' " Id. at 368 (emphasis added) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294, 58 S.Ct. 586, 592, 82 L.Ed. 845 (1938)). Accordingly, the court held that the plaintiff's posturing in Shaw constituted a concession that the amount in controversy exceeded $50,000.
30
As a preliminary matter, we note that the waiver approach taken in Shaw was not unanimously endorsed by the panel. See 994 F.2d at 372 (Shadur, J., dissenting) (majority's holding that plaintiff waived right to challenge amount in controversy "has done violence ... to one or more of the most fundamental principles of federal jurisdiction"). Nor do any of our cases indicate support for its application in this Circuit. We need not speculate on whether we would follow Shaw if plaintiff's litigation conduct was as egregious as that in Shaw. It was not.
31
This is not an action primarily seeking damages for a personal injury. Rather, the Union seeks injunctive relief to vindicate its alleged state constitutional right to picket at a privately owned shopping center. Any damages that might be awarded, would, in all probability, be the expenses incurred by the Union's being forced to use alternative communication modes for its organizing drive. The value of those collateral damages would appear, at least for diversity jurisdictional purposes, relatively easy for defendants to ascertain and difficult for the Union to manipulate.
32
Unlike Shaw, moreover, the Union has never conceded in any court that the amount in controversy exceeded the jurisdictional minimum. Nor can the Union's posture be characterized as taking one position on a jurisdictional fact at one point in the litigation and taking a contrary position as to that fact at a different stage or in related litigation. Cf., e.g., Roth v. McAllister Bros., Inc., 316 F.2d 143, 144-45 (2d Cir.1963) (defendant estopped from challenging award on jurisdictional ground that plaintiff was not a seaman where it successfully dismissed plaintiff's workers' compensation claim by arguing plaintiff was a seaman whose only remedy lay under federal law). We find nothing in the record, moreover, to suggest that the Union manipulated the amount in controversy so as to defeat federal jurisdiction. Accordingly, there is no basis to justify a holding that the Union waived its right to challenge the amount in controversy on appeal.
33
b. Pleadings
34
Having concluded that the Union has not waived its right to challenge defendants' assertion that the amount in controversy exceeds the jurisdictional minimum, we proceed to consider defendants' argument that the pleadings establish that the amount in controversy exceeds $50,000 in this case. To that end, it bears repeating that "[a] party invoking the jurisdiction of the federal court has the burden of proving that it appears to a 'reasonable probability' that the claim is in excess of the statutory jurisdictional amount." Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir.1994). Where, as here, jurisdictional facts are challenged, the party asserting jurisdiction must support those facts with "competent proof" and "justify [its] allegations by a preponderance of evidence." McNutt, 298 U.S. at 189. Here, that burden falls to defendants and has not been met.
35
A review of the pleadings in this case fails to satisfy us that the required minimum amount in controversy exists. The complaint makes clear that the Union seeks to vindicate an alleged state constitutional right of free speech. In that sense, the Union's claim is essentially one for injunctive relief. Admittedly, the Union's prayer of relief, in addition to requesting an injunction on the picketing ban at the Mall, asks for "such other relief at law or in equity as is fair and just." (emphasis added). To the extent that this prayer may be read as seeking damages, however, the pleadings themselves provide no reliable indication of the specific amount, if any, in damages claimed by the Union. Indeed, the only reference to any amount in controversy we find in the record is the Union's boilerplate demand statement, as required by Connecticut state court procedure in all actions, whether legal or equitable, that it seeks relief in excess of $15,000. Such a boilerplate demand statement setting forth an open-ended demand for an amount in excess of $15,000, without more, falls well short of the type of proof we require from defendants to establish that the $50,000 amount in controversy requirement is met in an action seeking primarily injunctive relief. In keeping with the established view that "plaintiff is the master of [its] claim" whose monetary demand is to be accorded deference, see 14A Wright & Miller Sec. 3702, at 22-23 & n. 15 (and cases cited therein), we conclude that the pleadings alone are insufficient to establish that the amount in controversy exceeds $50,000 in this case.
36
Where the pleadings themselves are inconclusive as to the amount in controversy, however, federal courts may look outside those pleadings to other evidence in the record. See Land v. Dollar, 330 U.S. 731, 735 & n. 4, 67 S.Ct. 1009, 1011 & n. 4, 91 L.Ed. 1209 (1947); Antares Aircraft v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.1991), vacated on other grounds, --- U.S. ----, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992). To that end, defendants offer us United Food and Commercial Workers Union, Local 919 v. Lechmere, Inc., Civil No. H-87-642 (D.Conn. Dec. 1, 1987), slip op. at 4-5 (denying plaintiff's motion to remand action for injunctive relief seeking to vindicate free speech right under state constitution where affidavits indicated that plaintiff used more expensive forms of communication in lieu of prohibited speech activity thereby creating the possibility that damages might exceed statutory minimum). Relying on Lechmere, defendants posit that as a result of the picketing ban, the Union has been forced to utilize more expensive communication modes such as radio and newspaper advertisements to carry out its organizing campaign. Defendants argue that were the Union to prevail on its free speech claim it would be entitled to recover costs associated with the more expensive communication which, in turn, would entitle the Union to damages that might exceed the jurisdictional minimum.
37
Defendants' reliance on Lechmere, however, while providing a helpful example of how a court might determine the amount in controversy in an action seeking to vindicate a free speech right through injunctive relief, is not dispositive of whether the amount in controversy requirement is satisfied in this particular case. As noted above, Lechmere involved a free speech claim virtually identical to the Union's in this case. After having its case removed to federal court, the plaintiff union in Lechmere filed a motion to remand to state court on the ground that the defendant had failed to establish the requisite amount in controversy to confer diversity jurisdiction. In considering the issue, however, the district court relied heavily on an affidavit submitted by the defendant that the plaintiff's resorting "to alternative methods of communicating with defendant's employees, to wit, newspaper advertisements" cost the plaintiff an estimated $22,982.40 and "may well have reached $51,000." Id. at 4. The district court found that through the submission of this affidavit the "defendant has shown a potential recovery of damages by plaintiff, in the form of expenses incurred in the effort to overcome defendant's continued alleged refusal to comply with state law, in excess of $10,000," the prescribed jurisdictional minimum at the time of the action. Id.
38
By contrast, this record contains no supplementary submissions or estimates of what costs were incurred by the Union as the result of its resorting to alternative methods for communicating with Filene's employees. We have nothing before us that indicates whether the Union has engaged in alternative communications, let alone the nature, amount, and cost of such communication modes. Furthermore, any attempt on our part to put a monetary value on the right of association and speech itself would be purely speculative on this record. Thus, Lechmere, rather than supporting defendants' amount in controversy claim, underscores our concern that the record, at least as it has developed to this point in the proceedings, is inconclusive and fails to establish to a reasonable probability that the amount in controversy exceeds the statutory minimum in this case.
39
The lack of a developed record as to the amount in controversy cannot be laid solely at the feet of the defendants in this case. Clearly, had the Union challenged the amount in controversy in the traditional manner available to it in the district court, i.e., had the Union filed a timely motion to remand pursuant to 28 U.S.C. Sec. 1447(c), the parties, under the direction of the district court, would have had an opportunity to supplement the record to allow for an informed decision on the issue. It is only fair, therefore, that the issue be remanded to the district court to allow the parties to submit evidence on the amount in controversy and to give defendants an opportunity to meet their burden as to this requirement of diversity jurisdiction as well. See Georgiades v. Martin-Trigona, 729 F.2d 831, 833-34 (D.C.Cir.1984) (remand required for additional factual determinations as to whether claims were aggregated to meet minimum amount in controversy requirement); see also United States ex rel. Mississippi Road Supply Co. v. H.R. Morgan, Inc., 528 F.2d 986, 987 (5th Cir.1976) (per curiam) (remanding jurisdictional issue for reconsideration in light of development of factual record on remand); cf. Lupo v. Human Affairs Int'l, 28 F.3d 269, 273-74 (2d Cir.1994) (where defendant raises diversity jurisdiction for the first time on appeal as alternative basis for jurisdiction after failure "to assert any amount in controversy or even raise the issue of diversity jurisdiction" in its notice of removal, diversity jurisdiction will be deemed to be lacking and defendant is not entitled to have issue remanded for reconsideration by district court on a supplemental record).
B. Federal Question Jurisdiction
40
In addition to diversity jurisdiction, the notice of removal avers that federal question jurisdiction exists in this case. Specifically, the notice of removal asserts that the Union's state law free speech claim is "preempted by [ ] the National Labor Relations Act, 29 U.S.C. Sec. 141, et seq."
41
It is unclear on this appeal, however, whether defendants have abandoned their preemption claim. For example, in its brief, Meriden Square asserts that both itself and May "rest solely on the clear diversity basis for federal jurisdiction and do not assert the existence of a federal question." May, on the other hand, while not addressing the jurisdictional issue directly, asserts in its brief that even if diversity jurisdiction were found to be lacking, we nevertheless should dismiss the complaint because state court jurisdiction is preempted by the NLRA. Furthermore, although defendant May raised the preemption issue in its motion to dismiss before the district court, the district court never considered the issue. Thus, at best, the preemption issue is before us only cursorily, and at worst, defendants have staked out confused and contradictory positions as to the federal question basis for removal.
42
While the law makes clear that we retain the ability to address a theory of the case not considered below in certain cases, see Thompson, 15 F.3d at 248-49 (considering theory of standing on appeal that was not specifically raised in district court); Poloron Prods., Inc. v. Lybrand Ross Bros. & Montgomery, 534 F.2d 1012, 1018 (2d Cir.1976), our "preferred practice ... is to remand the issue for consideration by the district court in the first instance where, as here, 'such a theory has been briefed and argued only cursorily in this Court.' " Thompson, 15 F.3d at 253 (quoting Poloron Prods., 534 F.2d at 1018). Remand, moreover, is particularly appropriate here where, despite the assertion of federal question jurisdiction in the notice of removal, the district court never considered the preemption issue and the issue has been given a somewhat cursory and confused treatment on appeal. Accordingly, we remand the issue of federal question jurisdiction to the district court for consideration in the first instance.
C. Remand
43
As a final matter, it warrants mentioning that we agree with the district court that the Union has failed to state a claim under the current state of Connecticut law. See Cologne, 192 Conn. at 63, 66, 469 A.2d 1201. Thus, if the district court determines that federal jurisdiction exists over this case, the judgment dismissing the action on the merits under Fed.R.Civ.P. 12(b)(6) for failure to state a claim should be reinstated. Similarly, if the district court concludes that the Union's claim is preempted by the NLRA, it should dismiss the action. Conversely, if it determines that it lacks subject matter jurisdiction, the district court must then consider whether the law requires remand to state court pursuant to 28 U.S.C. Sec. 1447(c) or whether it may dismiss the action altogether pursuant to Fed.R.Civ.P. 12(b)(1).
CONCLUSION
44
For the reasons stated above, we vacate the judgment of the district court dismissing the Union's action pursuant to Fed.R.Civ.P. 12(b)(6) and remand the case to the district court for a determination of whether it has subject matter jurisdiction over this action pursuant to either 28 U.S.C. Secs. 1331 or 1332.
45
The parties shall bear their own costs.
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